Farris v. Cabin Creek Consol. Coal Co.

• Decision Date: 02 February 1915
• Docket Number: 1292.
• Citation: 220 F. 813
• Parties: FARRIS v. CABIN CREEK CONSOL. COAL CO.
• Court: U.S. Court of Appeals — Fourth Circuit

220 F. 813

FARRIS v. CABIN CREEK CONSOL. COAL CO.

No. 1292.

United States Court of Appeals, Fourth Circuit.

February 2, 1915

Maynard F. Stiles, of Charleston, W. Va., for plaintiff in error.

George S. Couch, Jr., of Charleston, W.Va. (Brown, Jackson & Knight of Charleston, W. Va., on the brief), for defendant in error.

Before KNAPP and WOODS, Circuit Judges, and WADDILL, District Judge.

KNAPP Circuit Judge.

This is an action for personal injuries received by the plaintiff in error (plaintiff below) as the result of a singular accident. The defendant operates a coal mine on Cabin creek, Kanawha county, W. Va., the opening of which is on a steep hillside about 1,000 feet above the creek. Near the creek is a tipple from which a tramroad extends up to the opening of the mine. This tramroad is used for lowering the coal from the mine to the tipple, where it is discharged into cars. The plaintiff, a young Italian, was employed at the tipple to hook and unhook the coal cars as they came down from the mine and were returned, and to keep the tipple in order. About 75 yards up the creek is another tramroad, which begins at a hoisthouse some distance above the creek and runs up the hillside, practically parallel with the other tramroad, to a point on the same bench as the mine. This tramroad is used for mine supplies and to take the miners up and down, and was equipped with an open flat car hauled by wire cable and electric hoist.

On the day of the accident, the plaintiff, who had been at work only a week, and a man by the name of Stover, were directed by the mine boss to go up on this tramroad to get a barrel of oil and take it up to the top of the hill to the mine. It appears that this barrel of oil had rolled off the car, while being taken up the day before, and had lodged on the ground near the tramroad about 25 yards from its top. Two other men Green and Adams, were sent from the drumhouse, at the head of the other incline, to assist in loading the barrel, and for that purpose took from a stock of car timber at the drumhouse an oak plank, about 12 feet long, 12 inches wide, and 2 inches thick, which they carried on their shoulders some 75 yards around the hillside to the head of the incline in question, intending to take it down on the car to the barrel and then roll the barrel on it up onto the car. Just as they got to the head of this incline, one of the men slipped, and the other being unable to hold the plank, which is said to have weighed about 96 pounds, it escaped from their control and went 'tearing down the hill' towards the ascending car, on which the plaintiff and Stover were seated. The car had gone about half way up to the top when the plank began its swift descent down the incline. When the plank fell, one of the men who had been carrying it gave out a warning cry, and the man at the hoisthouse, seeing the plank coming, put on the brake to stop the car. It seems that at or about the same moment the plank was seen by the men on the car, and Stover called to the plaintiff to jump. Both of them jumped when the plank was 30 to 50 feet away, Stover first and the plaintiff immediately afterwards. The plank had been coming down on or between the rails, but presently took a different course, probably because the sudden stopping of the car jerked up the cable, which threw the plank off the track and kept on its downward flight alongside the tramroad. It happened to hit the plaintiff, either as he was jumping or about the instant he struck the ground, and he was severely injured; one of his legs being so badly broken as to require amputation above the knee.

At the conclusion of the evidence the trial court directed a verdict for the defendant, and the correctness of that ruling is the main question to be determined. It seems quite unnecessary in this opinion to review the familiar principles which have been developed and applied in an endless number of negligence actions. In this case there is no dispute about the material facts and they are easily apprehended.

The plaintiff did not attempt to show that the bench along which Green and Adams were carrying the plank was unsafe, or in any respect in an improper...