Edgren v. Scandia Coal Co.
| Decision Date | 13 March 1915 |
| Docket Number | 29870 |
| Citation | 151 N.W. 519,171 Iowa 459 |
| Parties | EMIL EDGREN, Appellee, v. SCANDIA COAL COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, OCTOBER 2, 1915.
Appeal from Boone District Court.--HON. R. M. WRIGHT, Judge.
ACTION for damages for personal injuries to an employee in a coal mine. The injury resulted from a fall of slate. The plaintiff thereby lost his left arm at the shoulder joint and the thumb and forefinger of his right hand. There was a verdict for the plaintiff. The defendant appeals.--Reversed.
New trial awarded and judgment Reversed.
John T Clarkson and Stevens, Frye & Stevens, for appellee.
Parker Parrish & Miller, and C. Woodbridge, for appellant.
The defendant is a corporation engaged in coal mining. The plaintiff was an experienced coal miner in its employ. The accident resulted from a falling roof which was insufficiently propped. The negligence charged against the defendant was tat it failed, after repeated requests from the plaintiff, to furnish props for the propping of such roof. The defense interposed was a general denial and plaintiff's assumption of risk and contributory negligence. The accident occurred in the plaintiff's room or "place of work." The entry which immediately connected with this room extended east and west. The room extended from the entry toward the north. This room had been worked to a depth of 100 feet from such entry. It was about 20 feet wide, except at its south end, next to the entry, where it was only about 9 feet wide. As the miner's work progressed, a track was laid in the room and extended from time to time. The course of this track was almost due north, bearing, however, a little east. It was laid 4 or 5 feet east of the west wall or "rib" of the room. The thickness of the vein was about 4 feet. The height of the room varied to some extent, because of a "roll" or "step down," in the slate which comprised the roof. By reason of this "roll," the roof was slightly lower on the west side of the track than on the east. This roll, when first uncovered at its south end, entered into the coal bed about 2 inches. As the room was enlarged toward the north by the removal of the coal, the roll became deeper, so that at the final north face of the room as it was at the time of the accident, its penetration into the coal bed was about 8 inches. The principal part of the room required 4 1/2-foot props, and these were called for by the plaintiff several days in succession. The plaintiff had in his room 4-foot props and 5-foot props. He was able to use the 4-foot props and did use the same on all that part of the roof lying west of the line of the roll. This line of the roll in the roof was about on the line of the west rail of the track. On the east side of the track, the room was fully propped to within about 35 feet of the north end or face, and partly propped for a further distance, in that a row of props 3 1/2 or 4 feet apart was placed near to and parallel with the east rail of the track. This left an unpropped area of considerable size. At 2:00 o'clock on the day before the accident, the mine foreman was present in the room and promised to send a man down to saw the 5-foot props and render them suitable for use in propping this area. This had not been done at the time of the accident, which occurred the next morning at 7:30. Upon the morning of the accident, the plaintiff entered his room shortly after 7:00 o'clock and made an examination of the roof in the usual way and discovered, as he supposed, that it was solid and, for the time being, safe. He did not, however, proceed with his mining at the face of the room, but he did proceed to load a car with his "stock coal" which he had accumulated in a pile on the west side of the track. He pushed the car on its track to a point 30 or 35 feet south of the face. At such point he was loading his car, when a fall of slate occurred. This was the result of lack of support to the roof. It came primarily from the unsupported part of the roof, but brought with it a part of the roof which was supported by props. At that moment, the plaintiff was in front of his car adjusting the position of a block of coal. The fall was confined to the east side of the line of the "roll" heretofore referred to. No fall occurred on the west side of the track. The roof over plaintiff's head at the time of the accident was supported by the row of props on the west side of the track already referred to, extending nearly to the face of the room, and by the shorter row of props on the east side of the track, extending to within 17 or 18 feet of the face of the room. This row extended about 7 feet further north than plaintiff's position at the time of the injury. The reason why the room was not propped up to within 6 or 10 feet of the working face was that the plaintiff had been unable to obtain from the defendant the necessary props for that purpose. The foregoing is sufficient statement to enable us to consider the bearing of certain sections of the statute which are of controlling importance. In presenting the foregoing as the "facts," we do so only in the sense that they have support as such in the evidence.
I. At the close of the evidence, the defendant moved for a directed verdict in its favor on the grounds (1) that no actionable negligence on the part of the defendant was shown in that, if it was negligent at all, such negligence was not the proximate cause of the injury; (2) because the plaintiff had failed to show himself free from contributory negligence and because it appeared conclusively that he was guilty of contributory negligence; and (3) because it appeared conclusively that the plaintiff had assumed the risk of the injury which resulted to him. This motion was overruled and the case was submitted to the jury. It is now contended for the defendant that such motion ought to have been sustained. This contention is based upon certain recent enactments which have a very important bearing upon the respective rights of the parties herein. The first of these for our consideration is chapter 106 of the Acts of the Thirty-Fourth General Assembly, now incorporated in Sec. 2489 et seq. of the Code Supplement of 1913. It is provided therein as follows:
From the first section above quoted, it will be observed that it is the duty of the employing corporation to keep a supply of props convenient and ready for use, and that it is its duty to "send such props down when requested and deliver them to the places where needed." Under the second section, the duty to prop and timber the roof of the miner's room or working place is upon the miner himself. Manifestly, however, this particular duty cannot rest upon him until his employer has sent the props down. The duty of the employer to send the props down does not arise until the miner has requested the same. The miner, therefore, is under the antecedent duty to make request for needed props, and we may assume that such request ought to be made at such a time as will give the employer a reasonable time and opportunity to comply therewith before danger be imminent. The further twofold duty is laid upon the miner: (1) To examine his working place upon entry of the same, and (2) he "shall not commence to mine or load coal or other mineral until it is made safe." These duties are continuing duties and rest upon the miner regardless of whether his employer has supplied him with suitable props or not. The affirmative duty here laid upon him is to "examine his working place upon entering the same." He must not permit his attention to be diverted to any other work until he has made such examination. It is a duty of inspection. The second duty trails the first and is prohibitive and negative and forbids him to "commence to mine or load coal" until his working place "is made safe."
The first contention of defendant at this point is that, as the failure of the employer to furnish props when requested becomes negligence as a matter of law because of a violation of the statute, so the failure of the miner, if any, to discover the unsafe condition in his room, and his failure to refrain from mining and loading coal until safety be secured, are also negligence as a matter of law, because it is a violation of the express provisions of the statute; and that if it be such negligence, then it becomes the proximate cause of the injury, or at least a contributing cause, either of which will defeat recovery.
For the plaintiff, it is argued that the term "safe" is a relative term and that it necessarily involves different degrees and that its ascertainment in advance must necessarily rest on the judgment of the inspector; and that therefore, if the plaintiff in this case, in compliance with the statute, did examine the roof of his room with reasonable diligence under all the circumstances, and if, upon such examination, the...
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