Dasher v. Hocking Min. Co.

• Decision Date: 07 April 1914
• Docket Number: 2436.
• Parties: DASHER v. HOCKING MINING CO.
• Court: U.S. Court of Appeals — Sixth Circuit

212 F. 628

DASHER v. HOCKING MINING CO.

No. 2436.

United States Court of Appeals, Sixth Circuit.

April 7, 1914

T. E Powell, of Columbus, Ohio, for plaintiff in error.

E. J Jones and Grosvenor, Jones & Worstell, all of Athens, Ohio for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and SANFORD, District judge.

KNAPPEN Circuit Judge.

Plaintiff brought suit to recover for injuries suffered by him while engaged with another workman in taking out 'bottom' coal in an entry of defendant's mine, the injury being caused by the fall from the roof of a 'pot' of slate or soapstone weighing several hundred pounds. The defendant was alleged to be negligent in failing to prop up or support the roof of the mine in any way.

Section 6871 of the Revised Statutes of Ohio, then in force, provided that:

'Any miner or other person, employed in any mine governed by the statute, who intentionally and willfully neglects or refuses to securely prop the roof of any working place under his control, * * * for fifteen feet back from the face of his working place, * * * shall be fined not less than fifty dollars, or imprisoned in the county jail not more than thirty days, or both. The owner, agent, or operator of every coal mine shall keep a supply of timber constantly on hand, and shall deliver the same to the working place of the miner, and no miner shall be held responsible for accidents which may occur in mines where the provisions of this section have not been complied with by the owner, agent, or operator thereof.'

The Supreme Court of Ohio has held that the statutory policy established by section 6871 and related sections imposes the duty to prop the roof of a 'room' upon the miner in control thereof; that this duty cannot be shifted to another; and that failure to observe the duty defeats recovery (Coal & Mining Co. v. Administrator of Clay, 51 Ohio St. 542, 555, 38 N.E. 610, 25 L.R.A. 848; Coal Co. v. Donley, 73 Ohio St. 298, 302, 76 N.E. 945); and that, if two miners are equally 'in control,' the fact that one is distinguished as 'timberman' does not relieve the other of liability (Coal, etc., Co. v. Administrator of Clay, supra, 51 Ohio St.at pages 542, 556, 38 N.E. 610, 25 L.R.A. 848). The state Supreme Court has, however, held that the statute does not apply to 'entries'; that, notwithstanding the statute, it is the duty of the owner or the operator to furnish reasonably safe entries for ingress and egress of employes; and that the miners may presume that this duty has been performed (Wellston Coal Co. v. Smith, 65 Ohio St. 70, 82, 61 N.E. 143, 55 L.R.A. 99, 87 Am.St.Rep. 547; Davis v. Turner, 69 Ohio St. 102, 119, 68 N.E. 819).

At the conclusion of the testimony, the District Court held that, as matter of law, the place where plaintiff was at work was not an 'entry,' but was a 'room'; that the room was under plaintiff's control, within the meaning of the statute; that the place of the accident was within 15 feet from the face of the coal; that it was accordingly the plaintiff's duty to prop the roof, and he having thus disobeyed the statute could not recover. It was also held that even if the statute did not apply, and the case were to be governed by the common law, the plaintiff was shown by the record to be guilty of contributory negligence, as matter of law. Verdict was accordingly directed and judgment entered for defendant. The correctness of this direction is the important question presented for review.

Turning first to the relative duties of the parties in the absence of statute: The evidence construed most favorably to plaintiff, as it must be on motion to direct verdict, would sustain findings of fact substantially as follows: In carrying forward the entry the cutting had been done by a machine operated by the company, and the 'shooting down,' loading, and removal done by the 'fillers,' whose work (which was done by the ton) had been completed, as respects the extension in question, at least a few days previous to the accident. The machine does not cut quite down to the underlying fire clay; when the thickness of coal left is not more than four inches it is the duty of the fillers to remove it, when the thickness is greater the company has to do it. The 'bottom' coal in this case was 12 to 15 inches thick, and had to be removed before the machine could be used in further extending the entry. Plaintiff had been for about a year in defendant's employ, working by the day as electrical wire hanger and general repairman. He had had considerable experience, at intervals extending over a number of years, in various kinds of coal-mining work, although mining seems not to have been his principal business. He had never done any mining for the defendant company or in the mine in question. On the morning of the accident, the mine foreman (who was overseer of all inside mining operations) met plaintiff near the mouth of the mine, ascertained that he had probably nothing to do that day, and asked how he would like to go with one Andrews to take out bottom coal in the entry in question. Plaintiff assented. The foreman, Andrews, and plaintiff went together into the entry, where the foreman pointed out the coal which he directed to be taken up, suggesting that the best way to get it out was to first cut a trench on each side of the entry through to the fire clay, and then take out the intervening bottom by sledge and wedge. The foreman remained until the work of cutting the trenches was well under way and then left, telling Andrews, 'when you get this done, come down to the mouth of this entry, ' but giving no further instructions to plaintiff. The foreman did not return until after the accident. After plaintiff and Andrews had worked an hour or more, the 'pot' fell and struck plaintiff. Andrews' ordinary employment was that of timberman, whose duties are to 'take down loose slate if he finds it or timber it up if he finds it needs to be timbered. ' In the regular process of mining the posting and timbering up is done before the coal is shot down. The entry at the place where the work was being done was not timbered, no suggestion of timbering was made, nor was there testimony of any custom that those taking our bottom coal were to assume the duty of timbering. Plaintiff was permitted to show that when bottom coal is being taken out more than 15 or 16 feet back from where mining had been going on the overseer should test the roof, and in case of danger timber it up; but, under the view of the statute taken by the court, was not allowed to make a showing on this subject as to the 15 feet immediately back of the mining face. Plaintiff testified that the foreman made no test of the roof and said nothing on the subject; that plaintiff was depending upon the foreman to tell him if there was danger; that plaintiff had no knowledge that the roof was not safe. Andrews testified that, so far as he saw no examination of the roof was made by the foreman; that it looked to him (Andrews) to be safe; and that he made no test except by looking at it, and 'never thought to make an examination. ' The foreman testified that he examined the roof with his eye and with his hand; that it sounded solid; that its appearance was smooth and nothing unusual that he could detect. The principal, if not the only, light available was naturally that afforded by the 'bank' or cap lamps. There was testimony, on the one side, that taking out the bottom coal would not have, and on the other side that it might have, a tendency to loosen the pot, which, however, it seems to have been agreed, would fall anyway whenever air got in around it; but it was not disputed that the work of taking out the bottom would have no tendency to cause slate to fall that otherwise would be safe. There was testimony that the existence of a pot could not always be discovered by inspection or sounding. There was, however, testimony to the contrary; and the miner who operated the machine which cut the coal in the place in question testified that when he did his work the roof appeared seamy and inclined to be 'potty' at the place of the accident, that it was cracked and he thought it unsafe; and, further, that there was indication that the machine had cut through a claybank, and that the top is always bad and more or less dangerous on either side of such a bank.

Considering the case with reference alone to common-law duties, we think it clear that the court would not have been justified in directing verdict for defendant. No general rule is better established than that the employer owes to the employe...