Clinchfield Coal Corp. v. Hawkins

• Decision Date: 22 September 1921
• Citation: 108 S.E. 704
• Parties: CLINCHFIELD COAL CORPORATION . v. HAWKINS.
• Court: Virginia Supreme Court

108 S.E. 704

CLINCHFIELD COAL CORPORATION .

v.HAWKINS.

Supreme Court of Appeals of Virginia.

Sept. 22, 1921.

Error to Circuit Court, Dickenson County.

Action by Edgar Hawkins against the Clinchfield Coal Corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

Morison, Morison & Robertson, of Bristol, John W. Flannagan, Jr., of Clintwood, and W. H. Rouse, of Bristol, for appellant.

A. A. Skeen and J. C. Smith, both of Clintwood, for appellee.

KELLY, P. This action was brought by Edgar Hawkins against the Ciinchfield Coal Corporation to recover damages for personal injuries received by him when he was caught under a piece of falling slate in a mine owned and operated by that corporation. At the trial of the case the defendant interposed a demurrer to the evidence which the court overruled, and a judgment followed in favor of the plaintiff for the amount of the damages fixed by the jury in their conditional verdict. Thereupon the defendant obtained this writ of error.

There were three counts in the declaration, but the charge upon which the plaintiff's recovery depends is that he was an inexperienced miner, and that the defendant negligently failed to properly instruct him as to the dangers incident to the work.

The plaintiff was a bright, intelligent young man nearly 21 years of age, but prior to entering the service of the defendant as a miner his principal experience at manual labor had been obtained on a farm. He had. however, done some work cutting timber in the woods, and had also been employed a short time on the railroad grade outside of but near the mine in which he was subsequently injured. While engaged at this last-named work he boarded at a house where some of the miners also boarded, and heard them talk in a general way about their work.

He had been employed by the defendant as a miner for about two weeks before he was hurt, and during that period had actually worked in the mine eight or nine days. This was his first and only experience in that capacity, and he was not instructed by any one as to the dangers attending the work. This is his unqualified statement on the subject, and while there are some general and rather indefinite statements to the contrary by the witness Bob Dickenson, whose evidence is hereinafter more fully considered, the plaintiff's statement on the demurrer to the evidence must prevail.

He was put to work with Bob Dickenson, an experienced miner, who seems to have assigned his work to him; and it appears that two other miners of experience worked with him during a part of the time. His duty was to load coal into the mine cars, and so far as the record discloses or indicates he was never at any time while in the mines directed to do any other work. On the morning of the accident he went into a place in the mine known as room 15 with Dickenson, who "shot the coal" for him by placing a charge of dynamite in boles drilled on top of the coal seam next to the roof of the mine so as to spring the coal loose from the top. The plaintiff stood by and saw Dickenson prepare the shot, and they both withdrew to a place of safety until the shot went off. Dickenson did not go back to investigate the result of the explosion, and the plaintiff, to whom Dickenson had assigned the task of loading into the mine cars the coal thus shot down, returned and had been working an hour or two when a piece of "draw slate" fell from the roof and injured him. The plaintiff very frankly admits that he did not look at the roof, but says he would not have been able to tell by looking whether it was going to fall or not.

The remaining facts, so far as material to a decision of the case, will appear in the discussion of the various grounds which the defendant urges upon us in support of its demurrer to the evidence.

It is insisted that any recovery by the plaintiff is barred because he violated section 1863 of the Code of 1919, a part of the Virginia mining statute, which says that—

"No minor shall continue to work in any working place known by him to be unsafe, or which might have been so known to him in the exercise of ordinary care."

This point would be conclusive of the case if we were able to say as a matter of law upon the evidence certified that the plaintiff was a miner of sufficient experience to have known, or to have been able to ascertain by the exercise of ordinary care, that the roof was unsafe. The case depends, in our opinion, entirely upon whether he had been sufficiently instructed and whether he was an "inexperienced person" within the meaning of section 1840 of the Code. That section, so far as material here, is as follows:

"It shall be the duty of the mine foreman or assistant mine foreman of every coal mine in this state to see that every person employed to work in such mine shall, before beginning work therein, be instructed as to any unusual or extraordinary danger incident to his work in such mine which may be known to or could reasonably be foreseen by the mine foreman or assistant mine foreman. * * *

"Every inexperienced person so employed shall work under the direction of the mine foreman, his assistant, or such other experienced worker as may be designated by the mine foreman or assistant until he has had reasonable opportunity to become familiar with the ordinary danger incident to his work."

The foregoing section of the mining law imposes two nonassignable duties upon employers engaged in mining operations: First, to instruct every employee, whether experienced or not, as to the unusual and extraordinary dangers incident to his work in the mine which may be known to or could reasonably be foreseen by the mine foreman or assistant mine foreman; and, second, to see that every inexerienced employee works with a man of experience until he has had an opportunity to become familiar with the ordinary dangers incident to the work. The former requirement of the statute is merely declaratory of tbe common law, and the latter was intended by the lawmakers to provide a practical and effective method for giving to inexperienced miners the instructions which at common law it was the duty of the employer to provide.

If, as contended by counsel for defendant, the danger that draw slate would under the circumstances fall on the plaintiff was not "an unusual or extraordinary danger, " then the defendant did not violate the first branch of section 1840 above quoted, and we may go further and say that while the difference between "draw slate" and the sandstone or permanent roof is not very fully brought out in the record, we think it sufficiently appears that the accident which happened to the plaintiff was one which any experienced miner would have as a matter of law been bound to anticipate and protect himself against.

Upon the other branch of the statute, however, we are of opinion that on the evidence demurred to a jury might reasonably have found that the plaintiff was an "inexperienced person, " and as such entitled to the protection plainly intended by the statute for such person. Underground mining is in itself a hazardous business, and the ordinary and usual risks and dangers incident thereto may be quite extraordinary and unusual to one not experienced in that line of work. For example, it is stated in the petition upon which this writ of error was granted that "the draw slate is a shaly, loosely formed layer of slate, lying on top of the coal seam immediately under the sandstone or permanent slate roof, and always must be taken down." If this...