Grabner v. Texas Pacific Coal & Oil Co.

• Decision Date: 17 November 1925
• Docket Number: (No. 238.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 279 S.W. 550
• Parties: GRABNER v. TEXAS PACIFIC COAL & OIL CO.
• Court: Texas Court of Appeals

Page 550

279 S.W. 550

GRABNER v. TEXAS PACIFIC COAL & OIL CO.

(No. 238.)^*

Court of Civil Appeals of Texas. Waco.

November 17, 1925.

Rehearing Denied January 21, 1926.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Suit by Gottfried Grabner against the Texas Pacific Coal & Oil Company. From a directed verdict, plaintiff appeals. Reversed and remanded.

Morrow & Stollenwerck, of Hillsboro, and Wright Morrow, of Austin, for appellant.

John Hancock and Clarence Wightman, both of Fort Worth, for appellee.

BARCUS, J.

Appellant instituted this suit against appellee to recover damages for personal injuries which he received in the coal mines of appellee in Thurber, Tex. The cause was tried to a jury, and, at the conclusion of the testimony, the trial court instructed a verdict for appellee; hence this appeal.

Appellant was a miner, belonged to the Miners' Union, and was engaged in mining coal for appellee under a general contract entered into between the Miners' Union and the appellee, coal company. Under said contract, each miner was allotted a certain section of the coal mine in which he might work, and was paid for the coal which he dug at so much per ton, and was permitted to dig said coal in any method and manner he deemed proper and best. The portion of the mine in which appellant had been working at the time he received the injury was reached by going down a shaft 200 feet into the ground, and from said shaft a roadway or tunnel had been dug 500 or 600 feet. The space along said tunnel or passageway was divided into sections, each miner being given a 36-foot space, and the coal was mined back to the extent of 200 feet in each direction from said tunnel or passageway. The place allotted to appellant was about 500 feet from said shaft, and he had extracted the coal from said place allotted him back to a distance of about 35 feet. Under the rules, the miner was required, after he had extracted the coal, to prop the roof of the mine to prevent, as far as possible, the falling of rocks. The vein of coal being mined was from 1½ to 3 feet in thickness, and the miner was required to dig a passageway at least 5½ feet deep, in order to have a place to work and a sufficient space in which the company could run its car to haul the coal from the mine. The company furnished the miner the necessary props to use in bracing the roof, but the miner was required to put same in place and properly prop the roof. The miner was required to remove the "gob," which in the mine vernacular was the rock and dirt that was necessary to be moved in order to get the coal and make the space the full depth required. In order to complete the work, after the coal is removed from a section, it is necessary for the miner to brush his place, which means removing a sufficient amount of the "gob" to make the space the necessary height, and, after he has brushed his place and removed the "gob" and properly propped the roof, it then becomes the duty of the company to look after the roof. The miner is supposed to have control of, and be responsible for, the condition of 9 feet of space from the face of the coal where he is digging back toward the rear. The remainder of the space, beginning at 9 feet behind where he is digging the coal, after it has once been propped, is under the supervision of the company. Under the rules between the miner and the coal company, if a "squeeze" occurred — and by a "squeeze" is meant the settling of the earth above the mine, which causes the roof to cave in — if the mine had originally been properly braced, the company was required to remove the débris caused by the "squeeze." According to the testimony, it was impossible for any props to be placed sufficient to hold against a "squeeze," and, when a "squeeze" occurred, the miner was required to report said fact to the mine boss, and, if the mine boss failed or refused to begin removing the débris caused by the "squeeze" within 2 hours, the miner had the privilege of removing same himself, for which he was paid a stipulated wage of $2.84 a "shift." If the miner removed the débris caused by the "squeeze" without reporting to the mine boss, he was not allowed anything for his labor in removing same.

On the day the injury to appellant occurred, the miners had been laid off for 4 days, and during said time a "squeeze" had occurred, and, when the miners returned to their work on the fifth day, they discovered same, and appellant, with the other miners, reported said fact to Joe Hopkins, the mine boss. Hopkins, accompanied by appellant, went to the section of the mine where appellant had been working to investigate the matter and to make arrangements to have the débris caused by the "squeeze" removed, and, while appellant and the mine boss were negotiating with reference to having same removed, a rock fell from the roof of the mine, falling on appellant, which caused serious permanent injuries; there being no question about the seriousness of the injury.

Appellant in his petition claims appellee was and is liable for said injuries, because its servants, agents, and employés were negligent in not properly inspecting the roof and walls of the mine at the point where appellant was injured after same had been idle 4 days, and were negligent, in that they knew, or could have known by the use of ordinary care and diligence, that the roof, walls, or side of said mine at the point where plaintiff was injured were in a dangerous condition and without proper supports, and from which rocks were liable to fall and injure plaintiff, and were negligent in failing to exercise reasonable care to provide plaintiff a safe place in which to work, and were negligent, in that they knew, or could have known by proper inspection of said mine, walls, side, and roof thereof, that said rock which fell on appellant was loose and liable to fall, and were negligent in failing to exercise reasonable and ordinary care to inspect the walls, roof, and side of said mine at the point where plaintiff was injured; that each of said acts of negligence was the proximate cause of the injury. He then alleged in detail the injuries...