Ellsworth v. Metheney

• Decision Date: 02 October 1900
• Docket Number: 814.
• Citation: 104 F. 119
• Parties: ELLSWORTH v. METHENEY.
• Court: U.S. Court of Appeals — Sixth Circuit

104 F. 119

ELLSWORTH v. METHENEY.

No. 814.

United States Court of Appeals, Sixth Circuit.

October 2, 1900

Fred L Rosemond, for plaintiff in error.

Robert T. Scott, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

DAY Circuit Judge.

This action, brought in the state court, and thence removed to the circuit court of the United States, seeks the recovery of damages by the administratrix of John Metheney, deceased against James W. Ellsworth, an operator of a certain coal mine in which, on or about the 7th day of October, 1896, John Metheney came to his death. Metheney had been for some time employed as a coal miner in one of the mines of plaintiff in error, and, so far as ordinary coal mining is concerned, was a man of sufficient experience to undertake such work. Some three weeks before the death of Metheney an electrical mining apparatus was placed in the mine in which Metheney was at work, consisting of certain drilling machines connected by wire, and an electrical plant for the operation thereof. After the connecting wire reached the mine, it was strung along brackets set in the wall of the entry, and which stood out a few inches therefrom. While walking along the entry, and near this wire, Metheney came in contact therewith, and almost instantly died. There is contention in the case as to whether his death was due to heart disease, with which he is shown to have been afflicted, or the electrical shock resulting from contact with the wire. The theory of the plaintiff's case was that the wire was improperly insulated, and consequently when charged with electricity, highly dangerous; that Metheney was a man without experience in the use of electricity; that the entry was dark, or, at least, not well lighted, and under such circumstances Metheney was entitled to notice of the great danger involved in coming into contact with the wire; that the employer was guilty of negligence in thus placing the wire in the mine without adequate insulation or notice to the employes. On the part of the plaintiff in error it was claimed that the mechanism was purchased from a dealer in good repute; that the negligence, if any, was that of a third person, for which plaintiff in error was not responsible; that ordinary care had been used in providing the mechanism; that decedent came to his death by his own contributory negligence, and at a place where he was not required to be in the discharge of his duty as an employe. On this branch of the case there seems to be no conflict of testimony. At least, it is well established that Metheney, at the time of receiving the injury, had left the part of the mine in which he was employed, it being during the noon hour, and proceeded to the room of a fellow workman, and, after some talk with him concerning some of the mining operations, was returning to his room, when, after stopping on two occasions to pick slate from the roof, at the same time calling the attention of a fellow workman to its condition, came in contact with the wire, exactly how is not shown. It thus appears that when the injury was received Metheney was not acting in the course of his employment or performing the duties for which he was engaged. It is equally clear that he voluntarily left the part of the mine in which he was at work, and, after the talk with the fellow miner above referred to, was returning to his room. The court held that the workmen had a right to the use of the passageway during the noon hour, and submitted the case to the jury upon the theory that the deceased came to his death while acting within the scope of his employment. In this view instructions were given to the jury as to the duty of the employer to provide a safe place for his workmen, and the obligation of the servant to observe care upon his part. It was contended by the plaintiff in error at the trial that Metheney was injured outside of the course of his employment. The court, holding the view above indicated, disposed of this proposition by instructing the jury as follows:

'It is claimed, in the second place, that if the death was caused by the current escaping from the wire through the insufficiency of the insulation, yet the death was not due to the negligence of the defendant, but the negligence of deceased himself-- First, because he was not in the line of his duty,-- in other words, if he had been where he ought to have been, he would not have been hurt; and, second, that he was picking loose slate from the roof of the entry, and, the suggestion is, slipped and fell against the wire; and that in either case it was his own negligence that caused his death, and not the negligence of the defendant. I do not agree with the view of counsel for the defendant upon these points. The view I take of the law is this: That the men in the mine had a right to the use of this entry as a passageway to and from their work, and while they were going to their work or from their work they were as much in the line of their duty as when they were actually mining coal, and that during the noon hour, a time set apart, not only for the men to eat their dinners, but for rest from labor, they had a right, in the enjoyment of that time of rest, to go out into the open air, or into the room of some friend...