Duffey v. Consolidated Block Coal Co.
| Decision Date | 08 February 1910 |
| Parties | GEORGE DUFFEY v. CONSOLIDATED BLOCK COAL CO., Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED, THURSDAY, APRIL 14, 1910.
Appeal from Appanoose District Court.--HON. D. M. ANDERSON, Judge.
THIS is an action for personal injuries. There was a verdict and judgment for the plaintiff. Defendant appeals.
Affirmed.
Wilson & Smith and H. W. Byers, for appellant.
Howell & Elgin, for appellee.
At the time of the injuries complained of the plaintiff was a coal miner and an employee of the defendant. The defendant was operating its mine in what is known in the record as the "low coal" district. The coal vein in this region is thin, and the entries are correspondingly low, usually running less than five feet in height. On the day of the accident plaintiff was directed by the pit boss to engage temporarily in driving a mule in one of the entries, known in the record as the "first left entry." That is to say, the cars were drawn by a mule, and the plaintiff was required to bring in loaded cars from the miners' rooms and to take back empty cars for distribution thereto. According to plaintiff's evidence, he was not familiar with the work, and he entered some degree of protest against it. The pit boss assured him that it was a safe entry, and pressed the service upon him. According to his understanding, the mule presented some elements of danger. She would "kick and balk." Because of this fact, and because of his lack of experience, he entered upon the work with some trepidation, and doubtless with some lack of skill. He made two round trips without incident, and was engaged upon the third when the accident happened. While bringing in a string of loaded cars, he was caught between the load and a rock overhead, which protruded from the roof at one side of the entry several inches lower than the face of the rock on the other side thereof. In his previous trips he had necessarily passed this point five times, but had not observed this condition of the roof. He had not passed under this protruding rock, but had passed to one side of it, where the roof was higher. There was sufficient evidence to go to the jury on the question of defendant's negligence and plaintiff's contributory negligence, and no serious complaint is made as to the form of the instructions. The jury returned a verdict for the plaintiff for $ 150.
I. Appellant complains because the trial court failed to instruct the jury on the subject of assumption of risk. Appellant submitted to the trial court three instructions on the subject, which the trial court refused. The first of these requested instructions laid upon the plaintiff the burden of proving that he did not assume the risk involved in passing through the entry at the place of injury. This was clearly erroneous as an abstract proposition. Assumption of risk is an affirmative defense, and the burden is upon the defendant to plead it and prove it.
Assuming that the other two instructions asked on the subject were correct as abstract propositions of law, they were properly refused because the defendant had not pleaded such defense. The only reference to the subject contained in its answer is the following: "Defendant further states that whatever injuries, if any, the plaintiff received were such as he assumed the risk of in his employment by the company." The term "assumption of risk" has come to be used in a twofold sense. It is often said that an employee assumes the ordinary risk that is incident to his employment. This form of assumption of risk is often pleaded by defendants in personal injury cases, although it is quite unnecessary to do so. Assumption of risk in its true sense has reference to those risks arising out of the negligence of the master when such negligence is known to the employee, and the danger therefrom appreciated by him. In the first form herein indicated a specific pleading of assumption of risk of the ordinary dangers incident to an employment is a mere amplification of the general denial, and adds nothing to it in a legal sense. In the second form herein indicated it is an affirmative defense, and must be specifically pleaded as such. Sankey v. R. R. Co., 118 Iowa 39, 91 N.W. 820; Mace v. Boedker, 127 Iowa 721, 104 N.W. 475; Martin v. Light Co., 131 Iowa 724, 106 N.W. 359; Beresford v. Coal Co., 124 Iowa 34, 98 N.W. 902. The most that can be said of defendant's pleading in this respect is that it sets up an assumption of risk in the first form. There is no suggestion in it that plaintiff knew the defect complained of, or that he ought to have known it, nor any suggestion that he knew, or ought to have known, of the danger arising therefrom. The trial court therefore properly refused to submit the issue to the jury.
II. Complaint is made because the court permitted the witness Coop to testify as to the duties of the "pit committee," of which he was a member. This witness had made a measurement of the height of the entry at the alleged place of the accident immediately after it happened. The testimony complained of was given in explanation of the circumstance of measurement. He stated, in substance, that when an accident happened it was the duty and "general custom" of the pit committee to examine the circumstances of the accident, and that that was how he came to make the particular measurement. The testimony was purely explanatory, and was, in a sense, personal to the witness. It was clearly within the discretion of the trial court to permit it, and we can see nothing in it that was in any sense prejudicial to the defendant.
There was much inquiry of witnesses throughout the trial on the subject of "general custom," and appellant complains of it en masse. It is urged upon us that proof of "general custom" has become entirely too common in the trial of cases in the "low coal" district. It is urged in substance that it has become the "general custom" of lawyers in personal injury cases in such district to supply all deficiencies of evidence as to real facts with proof of some "general custom." We find nothing in this case that affords the appellant any just ground of complaint. It was incumbent upon the plaintiff to show freedom from contributory negligence. The cross-examination by defendant was directed towards showing contributory negligence on the part of the plaintiff. As bearing upon this question, the usual and customary method of doing the work was properly shown. These usual and customary methods were often referred to as "general custom." The most that can be said is that it presented a slight inaccuracy...
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