Heath v. Whitebreast Coal & Mining Co.

• Citation: 23 N.W. 148,65 Iowa 737
• Parties: HEATH v. THE WHITEBREAST COAL & MINING CO
• Decision Date: 21 April 1885
• Court: United States State Supreme Court of Iowa

23 N.W. 148

65 Iowa 737

HEATH v. THE WHITEBREAST COAL & MINING CO

Supreme Court of Iowa, Davenport

April 21, 1885

Appeal from Lucas Circuit Court.

THIS is an action for a personal injury, which the plaintiff alleges he sustained by reason of the negligence of the defendant while the plaintiff was engaged in the service of the defendant as a driver of cars in a coal mine. There was a verdict and judgment for the plaintiff, and the defendant appeals.

REVERSED.

McNett & Tisdale and Mitchell & Penick, for appellant.

Stewart Bros., for appellee.

OPINION

ROTHROCK, J.

The defendant was the owner of a coal mine in which several hundred men were engaged in mining coal. The coal was raised through a shaft about 350 feet deep. From the bottom of the shaft there was a main entry or passage-way over a mile in length, along which a railroad track was constructed for small cars, which were drawn by mules, and by which the coal was moved from side entries to the main track, and along that track to the bottom of the shaft. At a point in the main entry, about 375 feet from the shaft, a side track was constructed, which was from 60 to 70 feet in length, with both ends connected with the main track. The coal was moved up from the side entries, where it was moved onto the main track, and along the main track to the double track made by said side track; and the drivers unhitched from the loaded cars, and other drivers with other mules hitched to them, and drove them into the bottom of the shaft, and returned with empty cars, and the first named drivers took the empty cars from the side track back to be loaded at the rooms in the side entries. The grades were such that but one car load was taken up to the switch at one drive, but from there into the bottom of the shaft two or more cars were taken. In approaching the switch with a loaded car, there was a considerable up grade for some distance, and this grade continued to a point some 30 or 40 feet past the intersection of the side track, and from that point the track was level to the other end of the switch, so that cars would stand on the track without block or brake to hold them in position. There were grades at other places in the mines, and all these grades in the railroad track existed by reason of the fact that the coal that had been removed from the mine did not lie level, but dipped and undulated.

The plaintiff entered the service of defendant on the fourth day of September, 1882. On the next day he commenced driving cars from the side entries up to the place where the change was made at the double track in the main entry. He drove from that until the morning of the ninth of September, and while returning with two empty cars he was injured by two loaded cars, which ran down the grade, where they had been hauled and left by another driver, and struck the cars which plaintiff was driving. There were some four or five other drivers engaged with plaintiff in driving from the side entries up to the point where the change was made. The plaintiff claimed that his injury was caused by the negligence of the defendant, and that such negligence consisted (1) in constructing said double track on a grade whereby the cars left thereon were liable to escape and run down the main track and collide with other cars on the track; (2) in not providing the said cars or track with any block, safety spring-brake, trail, or any other appliance to prevent cars from running or escaping down the said grade; (3) in failing to keep a person at said side track to prevent the escape of cars therefrom. The defendant, by its answer, denied all negligence on its part, and averred that the plaintiff knew, or by the exercise of reasonable diligence might have known, of all the alleged negligence of which he complains, and yet he remained in defendant's service without objection or protest, and that the injury was caused by the negligence of a co-employe in the same general service.

The plaintiff was an experienced miner. He had been employed as driver in coal mines for five years before entering the service of defendant. He admits, in his...