Jackson v. Chase
| Decision Date | 15 November 1913 |
| Court | North Dakota Supreme Court |
Rehearing denied December 15, 1913.
Appeal from the District Court of Ward County, Leighton, J.
Reversed.
Judgment of the lower court reversed with instructions.
Palda Aaker, & Greene, for appellants.
The only vital question on this appeal is the negligence of the plaintiff. This question is determined by a consideration of the facts and conditions existing at the time of the accident, of which the plaintiff knew or ought to have known when he acted or omitted to act. Pittsburgh & W. Coal Co v. Estievenard, 53 Ohio St. 43, 40 N.E. 725; Rush v. Coal Bluff Min. Co. 131 Ind. 135, 30 N.E. 904; 26 Cyc. 1252-1254, and note 42; Petaja v. Aurora Iron Min. Co. 106 Mich. 463, 32 L.R.A. 435, 58 Am. St. Rep. 505, 64 N.W. 335, 66 N.W. 951; Narramore v. Cleveland, C. C. & St. L. R. Co. 48 L.R.A. 68, 37 C. C. A. 501, 96 F. 298; Lammey v. Center Coal Min. Co. 144 Iowa 640, 123 N.W. 356; Williams v. Norwood-White Coal Co. 146 Iowa 489, 125 N.W. 232; Oleson v. Maple Grove Coal & Min. Co. 115 Iowa 74, 87 N.W. 736; Butte v. Pleasant Valley Coal Co. 14 Utah 282, 47 P. 77; Coal & Min. Co. v. Clay (Consolidated Coal & Min. Co. v. Floyd) 51 Ohio St. 542, 25 L.R.A. 848, 38 N.E. 613.
The court's instructions to the jury as to the qualifications of the pit boss were wholly improper, because they related to a matter wholly immaterial. It is the duty of the court to instruct as to the law upon every material issue in the case. Moline Plow Co. v. Gilbert, 3 Dak. 252, 15 N.W. 1; Forzen v. Hurd, 20 N.D. 42, 126 N.W. 224.
Where there is no probability from the record, that needed corrections in the proof can be made or supplied on another trial, judgment should be ordered for defendants. Meehan v. Great Northern R. Co. 13 N.D. 432, 101 N.W. 183; Richmire v. Andrews & G. Elevator Co. 11 N.D. 453, 92 N.W. 819.
Francis J. Murphy, G. S. Wooledge, George A. McGee, for respondent.
A duty which the master can never delegate nor escape is that of selecting competent servants and employees. Rev. Codes 1905, § 5544; Labatt, Mast. & S. p. 193a; 26 Cyc. 1294, and cases cited.
The competency or incompetency of the pit boss may best be measured by considering the nature of his duties. Following this method, the master should use a degree of care in the selection of an overseer or boss commensurate with his duties. 26 Cyc. 1297, and case cited; Robbins v. Lewiston, A. & W. Street R. Co. 107 Me. 42, 30 L.R.A.(N.S.) 109, 77 A. 537, Ann. Cas. 1912C, 96, and note; Pfudl v. F. J. Romer Sons, 107 Minn. 353, 120 N.W. 303.
Plaintiff had the right to assume that Fry, the pit boss, was a capable man for his work, and to act on such assumption. Rev. Codes 1905, § 5552.
The plaintiff was acting wholly and under the immediate direction of his superior, and with expressed assurance of safety. Umsted v. Colgate Farmers' Elevator Co. 18 N.D. 309, 122 N.W. 393; Choctaw, O. & G. R. Co. v. Jones, 77 Ark. 367, 4 L.R.A.(N.S.) 837, 92 S.W. 244, 7 Ann. Cas. 435; Houston, E. & W. T. R. Co. v. De Walt, 96 Tex. 121, 97 Am. St. Rep. 884, 70 S.W. 531.
During the time hereinafter mentioned, defendants owned and operated a lignite coal mine near Kenmare in this state, and plaintiff was in their employ as a common miner. This mine was operated through rooms located parallel to each other, 30 feet apart, and all opening into a main hall way or shaft. When it was found necessary to open a new room a tunnel was made off of the main shaft and at right angles thereto, 30 feet beyond the last room, which tunnel was usually something over 30 feet in length. The vein of coal was about 3 feet in thickness, but in order to accommodate the car or truck the tunnel was dug somewhat deeper than the layer of coal. After the tunnel was completed and a track laid therein, the miner would commence at the right-hand side and about 8 feet from the entrance and extract the coal, thus creating a room upon his right-hand side. As the coal was extracted, timber props would be placed in this room to support the roof. This right-hand side of the room was known as the "gob" side, while the left-hand side, which was not disturbed, was known as the "pillar," and the further end of the room was called the "face." After the gob side of the room had been worked as close to the adjoining room as it was considered safe, the miner was supposed to work at the face end of the pillar side of his room, and rob the pillar by extracting as much of the coal as he safely could while retreating towards the entry of his room. It was also his duty to remove the timbers from the gob side as he retreated, and it was expected that the roof of the mine would then settle and fill up the room. During this process it was the duty of the miner to protect himself as best he could and at the same time extract as much as possible of the wall of coal between the several rooms. Plaintiff had been employed in this mine for a period of about a year, and had mined something less than 600 tons of coal at the time of his injury. He was a man forty-two years of age, who had had considerable experience as a machinist, and seems of fair intelligence. He was working under the direction of a pit boss or foreman, whose duty it was to look after the work of all the miners, see to the laying of the tracks, watch the proper supporting of the roof, and see that the coal loaded was clean. It was the duty of each miner to so timber his own room while working towards the face, so that the roof would be supported, and to protect himself while robbing the pillar and extracting the timbers. Just prior to the injury the pit boss directed plaintiff to begin robbing the pillar in the reverse manner to that usually employed, i. e., by beginning at the entry of the mine and working towards the face. Plaintiff started to extract a "v" shaped portion of the pillar or left-hand side of his room, beginning at the entry of the mine and widening to reach the face of the mine. After he had extracted coal to about 10 feet of the face, he prepared a blast of powder and caused the same to be exploded about 5:30 in the evening, and left the mine until the next morning about 8:30. At that time he entered the mine, pushed his car to the far end of the track, and was standing a few feet from the face of the mine on the car track, or between the car track and the rib side of the room, shoveling coal into the car, when a piece of clay broke loose from the roof, struck him upon the back, and caused his injury. He alleges that the defendants were negligent in employing an incompetent pit boss, and that it was on account of the erroneous method of robbing the pillar that he was injured. The defendants insist that the pit boss had nothing whatever to do with the plaintiff's injury, but that the injury was occasioned through plaintiff's own negligence, or at least that plaintiff's negligence contributed thereto to such an extent as to prevent recovering.
(1) The first question under consideration is whether or not the pit boss was incompetent. Upon this question we think that there is sufficient evidence to justify the jury in holding that person incompetent.
(2) The next question arising is whether the plaintiff's injury was...
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