Drugalis v. Northwestern Imp. Co.

• Decision Date: 09 January 1906
• Citation: 83 P. 101,41 Wash. 398
• Parties: DRUGALIS v. NORTHWESTERN IMP. CO. et al.
• Court: Washington Supreme Court

83 P. 101

41 Wash. 398

DRUGALIS v. NORTHWESTERN IMP. CO. et al.

Supreme Court of Washington

January 9, 1906

Appeal from Superior Court, Pierce County; A. E. Rice, Judge.

Action by A. J. Drugalis against the Northwestern Improvement Company and another. From a judgment for plaintiff defendants appeal. Affirmed.

B. S Grosscup and A. G. Avery, for appellants.

Govnor Teats, Frank B. Sayre, and Otis W. Brinker, for respondent.

MOUNT, C.J.

Action for personal injuries. Plaintiff recovered a judgment for $1,000 in the court below. Defendants appeal.

Plaintiff was employed as an experienced miner to mine coal in defendants' coal mine near Roslyn, Wash. The vein of coal where plaintiff was employed was about 4 feet, 10 inches, in thickness. Next above this vein of coal was a sandstone formation, about 12 inches thick, lying flat upon the vein of coal. A seam separated this sandstone from the coal on the lower side, and a seam likewise separated the sandstone from the hard country rock on the upper side. Above this sandstone formation was a continuous hard, solid rock. The method pursued in mining was to break down the coal in the face of the working by means of blasts. When the coal was broken down, the sandstone cap rock remained in its place. The miner then examined the sandstone cap rock above by means of a bar or pick, to see that it was safe. An experienced miner could tell by tapping the cap rock whether it was safe or not. If it was not safe, he put props under it, and then shoveled back the coal which was broken down by the blast. If it was safe, he did not use the props. Generally, however, the props were used, and after the coal was shoveled back toward or into a car which was furnished for the purpose of being loaded with coal, the props were removed, and the miner proceeded to break down the cap rock, which was thereupon piled up at one side of the 'room' where he worked. This cap rock was usually broken down by driving an iron wedge into the seam between it and the solid rock above. Sometimes it could be pried down with a bar without the use of the wedge. When it could not be broken down in either of these ways, it was broken down by a blast of black powder. It was always necessary, and was a part of the miner's duty to take down and carefully pile away this cap rock, which was done immediately after the coal was shoveled from under it. The props which were used to hold up the projecting cap rock, while the loose coal broken down from the face of the vein was being removed, were furnished to the miners by car drivers upon request of the miners. On the 17th day of June, 1903, while the plaintiff was at work in the mine, a piece of cap rock fell upon, or rolled against, his right leg, and broke it. Thereafter he brought this action alleging negligence of the defendants in two particulars First, in providing for the excavation of a room of unsafe size; and, second, in failing to provide timbers to enable plaintiff to safely prop his working place, as required by statute. The answer denied the allegations of negligence, and pleaded affirmatively contributory negligence and assumed risk. The first charge of negligence was abandoned at the trial. The evidence as to how the accident happened and as to whether or not there were props furnished to the plaintiff and whether or not plaintiff requested props from the drivers, or defendant Forsythe, is in irreconcilable conflict. The plaintiff's evidence was to the effect that he was injured while shoveling coal, that no props were furnished him, and that he had demanded props from both the driver and defendant Forsythe whose duty it was to furnish the props to the drivers to be delivered to the miners. The defendants' evidence was to the effect that, at the time of the injury, plaintiff told a number of witnesses that he was injured while wedging down the cap rock. These witnesses also testified that the coal was all cleaned out from under the cap rock, and that the wedge mark was plainly visible where the cap rock had been broken down. Defendants' evidence also tended to show that there were an abundance of props at hand for plaintiff's use, and that he had made no demand for props. The jury returned a...