Fowler v. The Pleasant Valley Coal Company

• Decision Date: 01 March 1898
• Docket Number: 887
• Court: Utah Supreme Court
• Parties: WILLIAM FOWLER, RESPONDENT, v. THE PLEASANT VALLEY COAL COMPANY, APPELLANT

52 P. 594

16 Utah 348

WILLIAM FOWLER, RESPONDENT, v. THE PLEASANT VALLEY COAL COMPANY, APPELLANT

No. 887

Supreme Court of Utah

March 1, 1898

Appeal from the Third district court, Salt Lake county. A. N Cherry, Judge.

Action by William Fowler against the Pleasant Valley Coal Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Bennett Harkness, Howat & Bradley, for appellant.

There is no presumption that the plaintiff was using due care where there is evidence tending to show negligence on his part. In an action for death or injury caused by defendant's negligence, where there is substantial evidence of contributory negligence by the deceased or person injured, it is error to charge that there is a legal presumption that he exercised ordinary care. Schepers v. Depot Co., 126 Mo. 665; Moberly v. Railway Co., 98 Mo. 183; Haynes v. Trenton, 123 Mo. 326; Miller v. City of Kansas, 18 S.W. 914; Spaulding's Case, 33 Wis. 582; Stebbins v. Railroad, 62 Md. 518; Justice v. Lang, 52 N.Y. 327; Whitsett v. Railroad, 25 N.W. 107; 1 Greenl. on Ev., Secs. 44, 48; Whitaker v. Morrison, 44 Am. Dec. 627; Lamson on Presumpt. Ev., rule 120, p. 576; Lee v. Publishers, 55 Mo.App. 390; Mynning v. Railroad, 64 Mich. 93; Rapp v. Railroad Co., 106 Mo. 423; Hoyt v. City of Hudson, 41 Wis. 105, 111; Durrell v. Johnson (Neb.), 48 N.W. 890.

Moyle, Zane & Costigan, for respondent.

Cited: McKee v. Tourtellatte, 44 N. E. 1071; Railway Co v. Duvall, 35 S.W. R. 699-702; Kane v. Railway Co., 128 U.S. 91; Snow v. Railway Co., 8 Allen 441.

In this case the plaintiff seeks to recover damages for injuries alleged to have been sustained by him while in the employ of the defendant as a coal miner, because the defendant, in violation of its duty, caused a chamber in its mine to be unsafely supported and timbered, and permitted the same to remain in an unsafe condition, in consequence of which negligence coal fell upon and injured him. The answer denied the allegations in the complaint, and alleged that the injury complained of was caused by the negligence of the plaintiff in failing to timber the mine as it was his duty to do, and by negligently placing himself in a known place of danger. It appears from the undisputed testimony that plaintiff was an experienced miner, and was paid by the ton. It was the plaintiff's duty to keep the place where he was working timbered from the face back to the place where he commenced work, and remove all loose coal. The miner furnished his own tools and powder. The company furnished the track for the miner to put down, and the timber which the miner put up to keep himself safe from falling rock. The miner was required to take care of the timber he placed in the mine. The plaintiff testified, in substance: That at the time of the injury he was taking down a part of a projecting pillar about 45 feet from the cross-cut. A track was run in the center of the place to carry out coal and rock, with timbers on each side to prevent coal from falling from overhead. That he was in the act of putting a hole on the left-hand side of the pillar to blow the top down, at a point about six feet from the place where he was working. That the place being driven was about 14 feet wide. That the piece of coal was a slip or seam. That the bottom of it had been shot off. The mine was not working on the day of the accident. A working day in this mine was when coal was being taken out. At this time Mr. Parmlee, the foreman, came, and asked the plaintiff what he was doing. Plaintiff replied that he was going to put a shot in there (referring to the projecting coal pillar), and stated that this slip of coal was liable to fall at any time without warning. Parmlee said it did not matter; that the face was too wide. He said, "Leave the coal there, and take the track and move it to the left," which would be two or three feet from and along the side of the hanging wall. He said, "Put no more timbers on the left-hand side, but place them on the right-hand side." He said, "The coal there is perfectly safe," and at the same time placed a chalk mark on it at a point about six feet from the face, and told me to leave it, or take my tools out. He said the drift was too wide, and directed it to be made 10 feet wide instead of 14 feet. Plaintiff moved the track, and placed the timbers as directed. Plaintiff then continued to work at the face four days after this conversation, and drove the drift 12 feet from this pillar of coal. Plaintiff was then asked by his counsel the following question: "Now, when Parmlee told you that that coal was safe, did you rely upon that statement of his? A. Yes, sir; I relied that what he said was right. He was the man that was running that mine, and what he said I had to abide by." Four days after this conversation, at a time when the mine was not working, the plaintiff was at the room, cleaning out clod, in order to get ready for work the following day. At this time several friends called in, and they all sat down to smoke. Plaintiff sat down nearly under this projecting piece of coal, and while they were talking, and within five minutes after they sat down, without any warning, the coal fell, and injured the plaintiff. On cross-examination the plaintiff testified that he believed the coal would fall and give no warning; that, if he had to pass there every day, it was not safe for him nor any other man. "Q. You believed that, did you? A. I did. Q. And you continued to believe it? A. I did; yes, sir. Q. You still thought it was not safe? A. I thought it ought to be taken down, because it was liable to slip out at any time without warning." Plaintiff also testified that he was not thinking of the coal just before it fell. "Q. You thought it was not safe? A. I thought it ought to be taken down, because it was liable to slip without warning, and so continued to believe." At the time Parmlee put the chalk mark on the coal he tried to explain to him that while it was hard it would fall and give no warning. Mr. Edwards, a witness for plaintiff, testified that plaintiff told the foreman at the time that the coal was not safe, and that the foreman said it was safe; that several days after this he was sitting down with the plaintiff, at the time he was injured, under the coal that fell; that at this time, two minutes before the coal fell, Mr. Reese, who was present, asked the plaintiff why he did not take down the piece of coal in question, that it would make a good shot, and that plaintiff replied that he would have taken it down before if the boss had not stopped him. At the close of plaintiff's case defendant moved for a nonsuit on the ground that the undisputed testimony showed that plaintiff was aware of the dangerous condition of the overhanging coal at the time and before the injury, and voluntarily exposed himself to the risk and danger arising from its falling upon him by unnecessarily placing himself under it; and upon the ground that at the time of the accident he was not employed in the occupation of a miner, in behalf of the defendant. Defendant's motion was overruled, and an exception taken. The first assignment of error is based upon this ruling.

MINER, J., delivered the opinion of the court. BARTCH, J., and McCARTY, District Judge, concur.

OPINION

MINER, J.

With reference to master and servant the rule is that, if a master gives the servant to understand that he does not consider the risk which the servant is to undertake one which a prudent person should refuse to undertake, the servant has a right to rely upon the master's judgment unless his own judgment is so clearly opposed thereto that in fact he does not rely upon the master's judgment. 1 Shear. & R. Neg. § 186. The...