Edwards v. Laurel Branch Coal Co

• Decision Date: 21 September 1922
• Parties: EDWARDS. v. LAUREL BRANCH COAL CO.
• Court: Virginia Supreme Court

114 S.E. 108

EDWARDS.

v.LAUREL BRANCH COAL CO.

Supreme Court of Appeals of Virginia.

Sept. 21, 1922.

[COPYRIGHT MATERIAL OMITTED.]

Error to Circuit Court, Dickenson County.

Action by W. L. Edwards, administrator of J. P. Edwards, against the Laurel Branch Coal Company. Judgment for defendant, and plaintiff brings error. Affirmed.

S. H. & Geo. C. Sutherland, of Clintwood, for plaintiff in error.

Chase & McCoy, of Clintwood, for defendant in error.

KELLY, P. J. P. Edwards, while at work in a mine operated by the Laurel Branch Coal Company, was accidentally killed by coal which fell in on him either from the side or the top of the mine. In this action by bin administrator for damages, there was a verdict for the company, upon which the court entered the judgment under review.

The declaration alleges at great length a number of breaches of duty on the part of the defendant, but in the light of the evidence the only material allegations are those which charge that the plaintiff's decedent was an inexperienced miner, unacquainted with the ordinary dangers incident to mining coal, and also unfamiliar with certain unusual and extraordinary dangers peculiar to such work in the company's mine and known to it, and that the company failed to comply with its legal duty in warning and instructing him; The other alleged breaches of duty may be disregarded. The particular danger which resulted in the decedent's death developed in the course of work which he could constantly observe as it progressed, and which in a sense he was helping to perform. As stated in the brief of plaintiff's counsel, the danger was such as that "an experienced miner would have known it at a glance." If he was an experienced miner, and was properly informed of any unusual dangers, the injury could not have happened to him without such carelessness on his part as would have barred any right of recovery, upon familiar and well-settled principles. See Addington v. Guests River Coal Co., 130 Va. 5S4, 108 S. E. 695.

The accident occurred in July, 1918. The duties of the defendant to warn and instruct the employees in its mine, whether such employees were experienced or inexperienced, are defined by statute. Acts 1912, c. 178, § 6, p. 421; Code 1919, § 1840. These statutory duties are somewhat fully discussed in Clinchfield Coal Corporation v. Hawkins, 130 Va. 698, 108 S. E. 701. As specifically stated in the statute they are 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 dangers 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 had had reasonable opportunity to become familiar with the ordinary danger incident to his work."

The plaintiff's decedent was about 23 years of age, and was well developed physically, although not entirely robust. He was a good and capable worker, and had saved somemoney from his wages as a laborer on a farm and on public works, but had no experience as a miner prior to his employment in the defendant's mine. He had been engaged there for about two weeks before his death. In point of intelligence he was probably slightly under the average, and he had a serious impediment in his speech, rendering it difficult for him to be understood by other persons; but the evidence as a whole does not warrant a fair inference that the defendant ought to have regarded him as mentally deficient. He had for some time been working on his own account, sometimes at home, sometimes away from home, with his father's approval and consent. When the accident occurred he was working with his older brother, John Edwards, who had been a miner for about a year, but in the defendant's mine for only about five weeks. This brother was doing what is called contract work, mining coal and loading the same into mine cars at a certain price per car. The decedent was employed to assist in loading the coal mined by John Edwards, with and under whom he constantly worked. There is a contention on behalf of the defendant that the decedent was an employee of his brother, and not of the company; but the evidence shows conclusively that he was working for and paid by it, although the payment for his work and that of his brother was made to the latter, and then divided between them in an agreed proportion.

Some of the evidence tended to show that there are dangers incident to mining for the defendant not usual in other neighboring mines. For example, one witness stated that:

"This coal at this place in the Widow Kennedy (referring to the name by which the seam of coal in the defendant's mine was known) is all broken, and is deposited in slips, and slides, and pieces of all sorts of shapes, and placed in all sorts of positions, and very often is not clean, but has dirt in it. An experienced miner can detect where these slips or slides are in this coal, both by sounding it and by the sight. You can see the crevices or seams, where the water has run through it and colored it. The only way that I know how to make the place safe, where these slips are, is to take them down. That is what I always do when I find them."

John Edwards testified that he had begun to notice some difference in the Widow Kennedy seam, as compared with other coal with which he was familiar, but had not discovered that it was more dangerous than the coal in the other mines until after the accident. He undertook to explain his lack of experience and his inability to appreciate the peculiar dangers in the defendant's mine by saying that, while he had been a miner for about a year, the previous mining which he had observed and participated in was car ried on by machinery, which cut the coal down, and that he had never worked before in "solid coal like that" He further testified as follows:

"It [the coal] was setting in all kinds of slips and every kind of way nearly that could be thought of; setting in all kinds of shapes, slipping and sliding every way, and it was wet. An experienced miner can tell where these slips are. I have learned that since."

John Edwards and Dave Edwards (the latter being another brother, who worked with John and Josh Edwards) both testified that neither of the three were ever warned or instructed as to the peculiar dangers in the Widow Kennedy seam, and that no instructions of any kind were given to the decedent by the mine foreman or his assistant.

The coal was 10 or 11 feet high where the accident occurred. The plaintiff's decedent and his brother, John Edwards, were loading a coal car; the former standing on the left and the latter on the right of the mine track when the coal fell on the decedent. The plaintiff contends this coal slipped out of what we may call a pocket from the right rib or side wall of the mine, while the defendant, on the other hand, contends that it came from the top and upper side of the rib, and consisted of a corner of loose coal which had been left hanging up there in the course of the work carried on by John Edwards and his helpers. There was evidence tending to support each of these contentions. It is shown without contradiction or dispute, however, that whether the coal which fell came from the right side, or from the right corner at the top, John Edwards had bored a hole in it and tried to shoot it down, just before he and his brothers quit work on the evening before the accident. The shot for some reason was not effective, and "blew out" without bringing the coal down. John Edwards testified that ha drove the hole straight into the rib, with a view of turning off a new room. The defendant's testimony tends to show that he put the hole in the alleged overhanging corner, so as to loosen and bring it down. In either event, one of the purposes in firing the shot was to get more coal to load into the cars.

John Edwards and his brothers left the mine that evening without going back to see the result of the shot. Dave Edwards for some reason quit the employment of the company that night, and did not thereafter return. When John Edwards and the decedent returned to work the next morning, they found that the shot had blown out, and before going to work John Edwards inserted a 10-foot steel bar in the hole to see if the coal was loose; but he was unable to prize it down. There was other coal, which had previously been shot down from the heading, just in front of where the hole had been made and fired, and it was this coal which John and Josh Edwards were loading into the car when the accident happened.

There was evidence to the effect that John Edwards and Josh Edwards had been specifically warned, either by the mine foreman or his assistant, on the evening before, that the coal which fell ought to be brought down before they worked under or near it. This evidence is in conflict with certain other evidence for the plaintiff.

1. The first assignment of error is that the court refused the plaintiff's motion to require the defendant to make more specific its grounds of defense in respect to the alleged assumption of the risk by the plaintiff's decedent. We do not find from the record that any such motion was ever made by counsel or acted upon by the court.

2. The defendant was required, on motion of the plaintiff, to file grounds of defense, and among them was this:

"Contributory negligence of plaintiff's intestate, Joshua Edwards, causing his injuries."

Thereupon the plaintiff moved the court to require the defendant "to plead said contributory negligence as required by the statute, " and the defendant then filed the following so-called "plea of contributory...