Hemmingson v. Carbon Hill Coal Co.

• Decision Date: 01 February 1911
• Citation: 62 Wash. 28,112 P. 1111
• Parties: HEMMINGSON v. CARBON HILL COAL CO.
• Court: Washington Supreme Court

112 P. 1111

62 Wash. 28

HEMMINGSON v. CARBON HILL COAL CO.

Supreme Court of Washington

February 1, 1911

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Matt Hemmingson against the Carbon Hill Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

James M. Ashton and Huffer, Hayden & Hamilton, for appellant.

Bates Peer & Peterson, for respondent.

CHADWICK J.

In January, 1910, the appellant was engaged in running a rock tunnel at its Carbon Hill coal mine. The tunnel was at that time about 1,600 feet long, and was in all respects the ordinary exploring or discovery tunnel, driven by miners with a hope or expectation of catching or cutting a deposit or ledge at depth. It ran through a formation of sandstone, and was timbered as the formation demanded. If the formation was faulty or soft or was passing through slips, it was timbered. If the formation was hard so as to sustain itself, no timbering was put in. The greater part of the tunnel had been timbered, a work in which the shift, of which respondent was one, was engaged at the time he was injured. The timbering consisted of setting in uprights, sixteen to eighteen inches in diameter, across the top of which a timber called a collar was placed. The uprights and collar were called a set. These sets were placed about five feet apart, and lagging was run from frame to frame on the rock side and top. It had been the general custom to set these frames and put in the lagging after each shot, which would, with the drills and methods used at the mine, tear down about 6 feet of rock. A progress of about 6 feet in 24 hours was usually made, and 8 or 9 frames would be put up in 7 days, if the formation was such as to require timbering. It was customary where the rock was soft and inclined clined to fall, to put splits or forepoles over the last collar, and wedge them up so as to support the roof while the permanent timbering was being put in. At the time of the accident complained of, the tunnel had been carried a distance of about 11 feet beyond the last frame, the roof being, in the judgment of the tunnel boss, sufficient to sustain itself. A crew consisted of the machine man and helper and two muckers. When the crew of which the respondent was the helper went to work at 7 o'clock on January 8th, the tunnel boss made some inspection of the roof, the character and extent of which is a disputed fact, and he then ordered the men to clear out the muck or rubbish, and set the frames in the space between the last set and the face of the tunnel. Respondent was engaged in making a hitch or depression in which to set one of the uprights, when a rock fell from the roof and cut his leg. He was taken to the local hospital where his wound was temporarily dressed, and thereafter to a hospital at Tacoma where he was confined for about five weeks while his wound was healing. The negligence alleged is that appellant put respondent to work in an unsafe place, failed to perform its duty of inspection, and failed to supply sufficient or proper timbers for temporary support of the roof, so as to make the place safe while permanent timbers were being put in. The defense is assumption of risk, contributory negligence, and failure on the part of respondent to follow a custom prevailing among miners engaged in making an unsafe place safe, to inspect by sounding and testing the rock for themselves and following their own judgment.

We think the facts are such as to warrant a submission of the case to the jury upon the general issues of assumption of risk and contributory negligence, and that the motion for nonsuit and directed verdict were properly overruled. Starck v. Washington Union Coal Co., 112 P. 235. But we are nevertheless constrained to hold that the case was submitted to the jury upon a wrong theory of the law, and that a new trial must be granted. The court assumed that section 7394 of chapter 3 of title 59, Rem. & Bal. Code, in which it is provided that the owner of a coal mine 'shall keep a sufficient supply of timber at any such mine where the same is required for use as props, so that the workmen may at all times be able to properly secure the said workings from caving in, and it shall be the duty of the owner, agent, or operator to send down into the mine all such props when required, the same to be delivered at the entrance of the working place,' was applicable to this case. That section of the statute must be construed in the light of the whole act. The design of the act is clearly apparent; that is, to protect men who are engaged in the business of mining coal, the extraction of which, by reason of its formation and the angles at which it usually lies in the ground is extrahazardous. 'Coal Mines' is the subject of the act, and the protection of workmen in coal mines is its object. It provides for inspection, underground maps ventilation, measurement of air, openings, exits, signals, hoisting pumps, safety lamps, proper tools, and care of the men engaged, as well as timbering. It is a complete act, and in our judgment cannot be held to apply to a discovery or exploring tunnel in which no coal is being mined, as was the case here. The work here engaged upon was in no sense different from the work of those engaged in exploring for gold or silver or copper. The work of coal mining was not being done, and might never be done in or through that tunnel. The tunnel was not a coal mine, but it might become a part of one, depending upon future developments. Statutes must be construed according to the natural, obvious, and popular meaning of the language employed. Potter, Dwarris on Statutes, pp. 143, 144. And when so construed, it would extend the coal mine statute beyond the limit of legislative intention to hold that a rock tunnel was a coal mine and subject to its operation. In speaking to a like question, the Appellate Court of Illinois said, in Springside Coal Mining Company v. Grogan, 53 Ill.App. 60: 'It is argued that the object and purpose of the statute was to guard against accidents and injuries of the exact kind and character as that which resulted in the death of the husband of the appellee, and that her case is clearly within the reason and spirit of the enactment. This is as fully true of all pits or holes made in the earth, and, if allowed to control, would extend the operation of the statute to pits or holes by which it was designed to reach and open lead or other mines of every kind. Pits or holes intended to be used as salt wells or to procure water for stock or other purposes, where employés would be exposed to like danger, as that which caused death in the case at bar, would be equally within the spirit and reason of the statute. ...