Ferrari v. Beaver Hill Coal Co.
| Decision Date | 13 July 1909 |
| Citation | 102 P. 1016,54 Or. 210 |
| Parties | FERRARI v. BEAVER HILL COAL CO. et al. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.
Action by James Ferrari, a minor, by Rosa Ferrari, his guardian against the Beaver Hill Coal Company and another. From a judgment for plaintiff against defendant the Beaver Hill Coal Company, it appeals. Affirmed.
See also, 102 P. 175.
This is an action by James Ferrari, a minor, by his guardian, against the Beaver Hill Coal Company and Daniel Maher, one of its employes, for damages arising from an injury received while in its employ.
Plaintiff at the time of the injury was engaged in the occupation of what is termed a "trip rider" or "rope rider," on the surface incline of the mine of the defendant company, and his duties consisted in taking cars up and down the incline trestle leading from the yard at the mouth of the mine to the platform at the head of the incline and just above what is called the "bunkers and washers," into which the coal is dumped from the cars. The incline or trestle was about 250 feet long and rose at an angle of about 30 degrees from the horizontal, the top of which was about 5 feet in width, and in some places 30 feet or more from the ground. The cars were lifted from the track below the platform by means of a hoisting apparatus consisting of an engine, drum, and cable, operated by steam power when used to bring loaded cars up the incline, but which was allowed to run loose when cars were lowered to the surface tracks beneath, except loaded cars were drawn up the incline, when steam power was used. Plaintiff in the regular performance of his duties, would attach the cable to the head car of a string or train of cars loaded with coal, mount them, signal the engineer in charge of the hoisting engine to pull the same up in the incline, and ride upon them to the platform above the bunkers, at which point it was his duty to detach the cable from the cars, and attach the same to the rear of the string or train of empty cars, which would then be lowered on the incline to the yard. In lowering the cars except when operated by steam power, the drum is entirely controlled by a brake, consisting of two wooden blocks with shoes set against the flanges on the outside of the drum, and operated by a foot lever. The engine is reversible, and the cars without much inconvenience can be let down by steam, but this was not the method used in lowering them. When the cars were discovered to be defective, they were set out on the side track on the bunker platform, and from time to time lowered to a point near the foot of the incline, where they were switched onto a track leading to the carpenter or repair shop, and it was a part of plaintiff's duties to have charge of the defective cars when sent to the shop for repair.
Plaintiff at the time of the accident was a minor, nearly 15 years of age, had worked for defendant several months, but had been occupying the position of trip rider only about four weeks prior to the accident, for which damages are sought. On the day before the accident a broken flange was discovered in the left front wheel of one of the cars, whereupon the car was set aside and marked "shop," indicating that it should go to the shop for repairs. Plaintiff was ordered to switch this car upon the track leading to the shop, and was told that a cotter pin, or pin holding the wheel in place, was missing, but was not informed of the broken flange. Pursuant to these directions he switched the car upon the track, attached it to the other five cars, and started down the incline, taking his usual position upon the left-hand corner of the rear car. When the trip was about halfway down the trestle, he observed the dump car, containing the defective wheel, jump from the track and leave the rails, the left front wheel first coming off, whereupon he immediately signaled to the engineer to stop, dismounted, and immediately proceeded to descend upon the right-end side of the trestle, climbing down one of the posts towards the ground. After moving about 45 feet the broken car left the track, carrying the others with it, taking the cable attached to the rear car over with them; the cable catching plaintiff's right foot, throwing him to the ground, and injuring the foot to such an extent as to require its amputation.
The complaint contains the usual averments, practically all of which were denied, but those upon which the case was contested and material to an understanding of the questions here presented were: That at the time of the accident plaintiff was not 15 years old, and that while in defendant's employ as a "rope rider" or "trip rider," the accident mentioned occurred; that the accident was occasioned through defendant's gross negligence in failing to provide for him a suitable place to work; that defendant company in addition thereto, disregarding its duty to promulgate rules and regulations for the guidance and control of its employes in and about the bunkers, washer, platform, incline, trestle, engine, and hoisting apparatus, negligently, and without exercising reasonable and ordinary prudence and care for the safety of plaintiff, operated and defective hoisting apparatus and appliances in connection with, and for the purpose of, raising and lowering the coal cars upon which plaintiff was riding on the incline and trestle from which they were conducted, and negligently, and without exercising reasonable and ordinary prudence and care for the safety of plaintiff, allowed the signal system, originally installed by defendant, and used in connection with plaintiff's part of the work, to get out repair and to become useless; and that said company was also knowingly grossly negligent and careless in its manner of moving the cars down the incline, and, in wanton disregard of human life, commanded plaintiff to take down the incline a string of five cars, more or less, the front car of which it, through its employes, knew was dangerously defective, thereby, in the manner stated, subjecting and exposing plaintiff to unreasonable and unnecessary danger and hazard; and that by reason of the dangerous condition of the cars, and other careless acts mentioned, and insufficient incline or trestle, including a failure to provide the necessary rules, and failure to inform plaintiff of the dangers and hazards of his undertaking, he was injured and damaged in a manner specifically alleged.
The company answered, denying in detail the above averments, and affirmatively averred: That plaintiff at the time of and during his employment, and prior to the date of the accident, had been, and was, fully informed and instructed concerning his duties and the order and manner of their performance; that the accident occurred wholly by reason of the fault, carelessness, and negligence of plaintiff; that immediately prior to the time of the accident he had been continuously for a period of seven months in the employ of defendant company was familiar with all the duties pertaining to his employment and fully instructed in regard to the methods of performing the same, was a competent and intelligent person, and could, by reasonable exercise of his faculties, understand and appreciate, and did understand and appreciate, all the risks and dangers incident to his occupation, and accepted his employment with full knowledge thereof; that it was a part of his regular duties to remove defective cars from the platform or washer above, and let them down the incline trestle and transfer them to defendant's shop for repairs; that all such cars were, immediately upon discovery of their condition, plainly marked so as to indicate that they were to be repaired, and it thereupon became plaintiff's duty to remove the same from the platform carefully, and with due regard to their defective condition, and to take the same over the trestle to defendant's repair shop at the foot of the incline; that he was fully competent to know, understand, and appreciate the dangers and risks, and did know, understand, and appreciate the dangers and risks of performing this work; that when the accident and injury complained of occurred, plaintiff was engaged in letting down said incline, together with cars in good condition, a broken and defective car, the defect in which consisted of the loss or absence of a cotter pin from the right end of the front axle, thus leaving the wheel upon the end of the axle free to slip therefrom and become disengaged; that the defect was plain, visible, and apparent, and the risks and dangers in moving the same were obvious, and could have been discovered and known to plaintiff by due exercise of his facilities, and was so known, appreciated, and understood by him; that plaintiff, knowing these facts, undertook the work, and at that time had full knowledge of the defect which caused the accident; that plaintiff, upon observing the cars were falling, or about to fall, from the track or trestle, stepped from the car upon which he was standing to and upon the plank walk provided for such purposes upon the trestle, and placed himself in a position of safety and security, but afterwards voluntarily, and for no good reason or excuse, stepped over the cable attached to the cars into a position of obvious and extreme danger, and while unnecessarily in such position sustained his injuries.
Upon these issues, with others not mentioned, concerning which there was finally no controversy, the cause was tried, resulting in a verdict and judgment in plaintiff's favor and against the Beaver Hill Coal Company (herein referred to as "defendant"), for $6,000, from which it appeals.
R.W. Wilbur and John D. Goss (John S. Coke and A.J. Sherwood, on the brief), for appellant.
J.M Blake and Francis H....
To continue reading
Request your trial