In re Claim of Hamilton

Decision Date23 November 1943
Docket Number2241
Citation143 P.2d 203,59 Wyo. 485
PartiesIn the Matter of the Claim of Delma Hamilton, Widow of Lee Hamilton, deceased employee of Swigart Coal Mine, Made Under "Workmen's Compensation Law." v. SWIGART COAL MINE, Defendant in Error MRS. DELMA HAMILTON, widow of LEE HAMILTON, Plaintiff in Error,
CourtWyoming Supreme Court

Error to District Court, Natrona County; Harry P. Ilsley, Judge.

Proceeding under the Workmen's Compensation Act by Delma Hamilton claimant, to recover compensation for the death of her husband, Lee Hamilton, employee, opposed by the Swigart Coal Mine, employer. To review an order of the district court disallowing the claim, claimant brings error.

Affirmed.

For the plaintiff in error there was a brief and an oral argument by Vincent Mulvaney, of Casper, Wyoming.

POINTS OF COUNSEL FOR PLAINTIFF IN ERROR

The mine owner is required to have a direct passage for men separate and apart from the haulageway from the opening of the mine clear to the place of work: W. R. S. 1931, Sections 23-104 and 23-105. The owner of a coal mine employing five or more persons must have a competent foreman: Chapter 48 Session Laws of Wyoming, 1933. The haulageway is required to have a minimum clearance of not less than 22 inches between the mine car, and the timber: Chapter 120, 1937 Session Laws Section 1, amended by Chapter 49 of the 1941 Session Laws. This is an attempt by the employer to excuse his own negligence in not complying with the laws of this state. The leading case is Hotelling v. Fargo-Western Oil Co., 33 Wyo. 240, 238 P. 542.

For the defendant in error there was a brief and an oral argument by J. F. Mahoney and D. W. Ogilbee, both of Casper, Wyoming.

POINTS OF COUNSEL FOR DEFENDANT IN ERROR

As to what constitutes newly discovered evidence: Bosler v Cobler, 14 Wyo. 423, 84 P. 895; Hardin v. Card, 15 Wyo. 217, 88 P. 217; King v. Beaumire, 26 Wyo. 35, 174 P. 612. Merely cumulative evidence is not a ground for the granting of a new trial: Link v. Union Pacific Railway Company, 3 Wyo. 680, 29 P. 741; Tucker v. Wyoming Coal Mining Company, 18 Wyo. 97, 104 P. 529. Conduct similar to that of the deceased employee in this case is of a character which will result in the denial of compensation: Pacific Coast Casualty Co. v. Pillsbury, (Cal. 1916), 162 P. 1040; Collins v. Brier Hill Collieries, (Tenn. 1929), 13 S.W.2d 332. "Culpable" as used in speaking of "culpable negligence" means "blamable": Peoria & P. V. Ry. Co. v. Clayberg, 107 Ill. 644. An act to be culpable must be such as a reasonably careful man would fear would be productive of injury: Carter v. Cape Fear Lumber Co., 39 S.E. 828. The Wyoming statute stands alone in this respect that recovery is precluded only when the injury is due solely to the workman's culpable negligence. Other statutes use other expressions, for instance, "willful misconduct": 23 A. L. R. 1161; 26 A. L. R. 166; 58 A. L. R. 197; 83 A. L. R. 1211; 119 A. L. R. 1409. Compensation is disallowed where the employee, in defiance of positive orders, left a board walk constructed for his use and took a short cut: Dickey v. Pittsburgh L. E. R. Co. (1929), 146 A. 543. A workman who deliberately violates a reasonable rule made for his own protection, with knowledge of its existence and of the dangers accompanying its violation is guilty of willful misconduct: Great Western Power Co. v. Pillsbury, (Cal. 1915), 149 P. 35; Fortin, et al. v. Beaver Coal Co. (1922), 187 N.W. 352; Red Jacket Consol. Coal & Coke Co. v. State Compensation Com'r., 162 S.E. 665. A violation of the statute is negligence per se only when one of the protected class is injured from a cause against which the statute was designed to protect him: Campbell v. Spokane & I. E. R. Co., (U.S.C. C.), 188 F. 516, 45 C. J. 724-729; 20 R. C. L. 41; Champlin Refining Co. v. Cooper, 86 P. 2d 61.

KIMBALL, Chief Justice. BLUME, and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

This is a proceeding in error for review of an order disallowing the claim of the dependent family of a deceased workman for compensation under the Workmen's Compensation Law, § 124-101 et seq. R. S. 1931. The workman, Lee Hamilton, who was employed as a miner in a coal mine operated by the employer, Ross A. Swigart, died from injury received when he was struck by a coal car. The employer contested the claim on the ground that the injury was not a result of the employment, and was due solely to the culpable negligence of the workman in being at a place where he had no duty to perform and where he had been forbidden to go. The issue was tried in the district court without a jury. The judge found that the injury was due solely to the culpable negligence of the workman; disallowed the claim, and later denied a motion for a new trial. The main question here is whether there was substantial evidence to support the finding of the trial judge.

The mine is not on a railroad and is operated during only a part of the year by a working force of eight or nine men besides Swigart who acts as his own foreman or superintendent. It has two converging slope entries, one called the manway, the other the haulage-way. The manway is a small tunnel about 60 yards in length, four feet wide and five feet high, running east from its portal which is near a cluster of buildings (boarding house and bunk-houses) to a place in the mine where the manway and haulage-way come together forming what is called the "junction." The haulageway is a tunnel whose portal is near the tipple and hoist house, about 70 yards southeast of the portal of the manway. From its portal, the haulage-way runs northeast to the junction, a distance of about 75 yards, and thence continues in the same direction to the place where coal was being dug, about 140 yards northeast of the junction.

The manway contained no car tracks or machinery, and was used exclusively as a way of travel between the surface and the junction. It was safe for that use, although the men in walking through it were put to the trouble of stopping.

The haulage-way from its portal to the junction was intended for use as a passageway for coal cars that ran back and forth on a narrow gauge track. The cars were attached to a cable that wound on a drum as the cars were pulled to the surface and unwound as they went back by gravity pulling the cable. Power for the hoisting apparatus came from a gasoline engine operated by the hoist man at the hoist house, about 30 yards from the portal of the haulage-way.

The haulage-way between the portal and the junction was narrow, with very little clearance space between the sides of cars and the side walls of the tunnel. Its use as a travel-way for miners going to and from the working place in the mine was very hazardous and was positively prohibited by the employer. The only employees permitted to enter that part of the haulageway were the hoist man and the rope rider who went there to inspect and to keep the car track free of obstructions.

A bulletin posted on the bulletin board, for the information of the workmen, contained the statement: "The Swigart Mine is Provided with a Manway. Use It." On a cross-timber above the portal of the haulage-way there was a large sign reading: "Danger. No Admittance," and on a post "as you look down the portal" there was another large sign reading: "Danger. Keep Out."

Hamilton was employed by Swigart September 24, 1941, as a miner, and worked until October 1, 1941, when he was fatally injured. His duties were to dig coal, load the coal in cars and push the cars into the main entry at a considerable distance below the junction. The testimony showed clearly that he was not employed to do any work that required him to go into the haulage-way above the junction, and that he was expressly forbidden to go there. The day he was employed, Swigart accompanied him about the mine; called his attention to the bulletin board and the signs at the portal of the haulage-way; told him that the signs meant just what they said; instructed him always to use the manway in going from the surface to the junction, and warned him that the penalty for use of the haulage-way for that purpose was discharge.

On the same day, the rope rider told Hamilton "to use the manway always--never to use the haulage-way . . . that it was plain suicide to go there, especially if there was a car on top." Two or three days before the accident Hamilton was seen in the haulage-way by another miner who told him that if Swigart found him using the haulage-way, "it meant immediate discharge." The fact that Hamilton had been seen in the haulage-way was not known to Swigart until after the accident of October 1. There was no evidence to require a finding that Swigart had ever relaxed the rule forbidding the use of the haulage-way as a travel-way, or that violation of the rule had ever been sanctioned or condoned. One miner had been discharged by Swigart for transgression of the rule.

Shortly after noon on October 1, about the time the mine employees had finished eating dinner at the boarding house, a customer Miller, in company with his wife, came to the tipple for a load of coal. The hoist man, whose duties included all operations necessary in making a sale, including hoisting, screening, weighing and loading the coal, went from the boarding house to the hoist house to wait on the customer. Two car-loads were needed. The first was hoisted, dumped and the empty car returned without incident, but when the second empty car was returned it went only part way down, indicating to the hoist-man that it had jumped the track. On investigation, the rope rider found Hamilton unconscious under the derailed car in the haulageway, about 15 feet above the junction. Hamilton died without regaining consciousness, as ...

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18 cases
  • Baros v. Wells
    • United States
    • Wyoming Supreme Court
    • 5 Octubre 1989
    ...misconduct of such a character as to evince a reckless disregard of consequences.' " Id., quoting Hamilton v. Swigart Coal Mine, 59 Wyo. 485, 143 P.2d 203, 206, 149 A.L.R. 998 (1943). The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor's state......
  • Smith, Matter of
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    ...P.2d at 1280. This court has recognized this scope of employment rule but has never applied it directly. See Hamilton v. Swigart Coal Mine, 59 Wyo. 485, 143 P.2d 203, 207-208 (1943) (decided on the issue of culpable negligence). Although not quoting the rule, we used its rationale in Richar......
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    ...term as used in Art. 10, Sec. 4, of the Wyoming Constitution that applies to the actions of an injured employee. Hamilton v. Swigart Coal Mine, 59 Wyo. 485, 143 P.2d 203 (1943). In Fuhs v. Swenson, 58 Wyo. 293, 131 P.2d 333, 338 (1942), this court in essence held that the term "culpable neg......
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    ...of consequences." Case, 776 P.2d at 191; Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo.1986), quoting Hamilton v. Swigart Coal Mine, 59 Wyo. 485, 143 P.2d 203, 206, 149 A.L.R. 998 (1943). The factor that is most significant in distinguishing willful misconduct from ordinary negligence is t......
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