James v. Winifred Coal Co.

• Decision Date: 18 October 1918
• Docket Number: 32345
• Citation: 169 N.W. 121,184 Iowa 619
• Parties: WILLIAM JAMES, Appellee, v. WINIFRED COAL COMPANY, Appellant
• Court: Iowa Supreme Court

169 N.W. 121

184 Iowa 619

WILLIAM JAMES, Appellee, v. WINIFRED COAL COMPANY, Appellant

No. 32345

Supreme Court of Iowa, Des Moines

October 18, 1918

Appeal from Appanoose District Court.--C. W. VERMILION, Judge.

THIS is an action to recover damages for injuries received by plaintiff while employed in defendant's coal mine at Mystic, Iowa. The necessary facts are stated in the opinion.

Affirmed.

Howell Elgin & Howell, for appellant.

Porter & Greenleaf, for appellee.

STEVENS J. PRESTON, C. J., WEAVER AND GAYNOR, JJ., concur.

OPINION

STEVENS, J.

I.

At the time of the accident, plaintiff was crawling across the cutter bar of a mining machine recently installed in the mine, which had been operated only by, or under the observation and direction of, an expert demonstrator. One Train, who claimed to have had nine years' experience in operating machines of similar construction in Scotland, and who was present, and who claims to have operated the machine for several days under the direction of the demonstrator, was employed by defendant to operate the machine. The injuries resulted from the unexpected starting of the machine by Train. The injury occurred in 1913.

Plaintiff and Train were fellow servants, and defendant is not liable for injuries caused by the negligence of the latter. The plaintiff alleged that Train was incompetent to run the mining machine; that defendant had full knowledge thereof, or, by the exercise of ordinary care, could have known of such incompetency, but for which the accident would not have happened.

The law is well settled that it is the duty of the master, not alone to exercise reasonable care to provide a reasonably safe place for his servants to work in, but also to exercise like care in the selection and employment of fellow servants. Gregory v. Chicago, R. I. & P. R. Co., 147 Iowa 715, 124 N.W. 797; Forney v. Mardis Co., 155 Iowa 667, 136 N.W. 895; Wolters v. Summerfield Co., 160 Iowa 127, 140 N.W. 388; Louisville & N. R. Co. v. Wyatt's Admr., 29 Ky. L. Rep. 437 (93 S.W. 601); Odegard v. North Wis. Lbr. Co., 130 Wis. 659 (110 N.W. 809); Peters v. Southern Pac. Co., 160 Cal. 48 (116 P. 400); Di Bari v. J. W. Bishop Co., 199 Mass. 254 (85 N.E. 89); Consolidated K. C. S. & R. Co. v. Taylor, 48 Tex. Civ. App. 605 (107 S.W. 889).

The evidence relied upon to establish Train's incompetency, in substance, was that he was unfamiliar with, and had never operated, the particular machine in question; that he had, for seven or eight years prior to the accident, worked simply as a miner in the mines at Mystic, and had nothing to do with mining machines; that he admitted to plaintiff and his wife, after the accident, that he knew nothing about the machine: while, on behalf of defendant, it is claimed that Train not only possessed experience, but, before coming to this country, became familiar with mining machines operated by compressed air and electricity; and that the difference between the machine in question and those which he had used in Scotland did not render the operation of defendant's machine more difficult. Upon this point, the evidence is somewhat conflicting. Plaintiff testified that he was present while the demonstrator was at the mine; and that Train did not operate the machine, but that same was run exclusively by the expert; that the former had never started or operated the same until the morning, and at the time, plaintiff was injured.

In this connection, it is well to consider the character, mechanism, use, and manner of operating the mining machine in question. It consisted of a combination of machinery, encased in an iron box, from one end of which a bar, called the cutter bar, extended at right angles. This cutter bar was 4 feet 9 inches in length, and was equipped with a series, or groups, of sharp picks. The machine weighed approximately 7,000 pounds, and was used to remove the earth from underneath the coal. When in motion, the machine made a loud noise, and the picks, attached to the cutter bar, were operated very rapidly by a revolving chain. As the earth was loosened underneath the coal, the machine was moved forward, so as to bring the picks in constant contact with the surface. The machine was moved forward by means of a heavy chain attached thereto, and to a "jack" or post set solidly about 70 feet in advance thereof. At the time of the accident, plaintiff, Train, and one Savage alone were present. The latter had gone forward to adjust the chain to the "jack," while plaintiff and Train were engaged in adjusting the machine, preparatory to starting the same in motion. When the earth is removed, props are placed in an upright position under the coal to keep it from falling until taken care of by the loaders. When in proper position, the full length of the cutter bar operates upon the surface; but, as the machine was placed at the time of the accident, only about two feet thereof was against the surface, and, plaintiff claims, had been cutting into the coal. After placing the prop, or "sprag," under the coal, plaintiff attempted to pass over the cutter bar, to avoid going around a distance, he claims, of about 300 feet. The evidence, however, upon this point is in conflict. Defendant claims there was sufficient space between the machine and the gob, which caused the obstruction, for plaintiff to pass, and that he should not have attempted to go upon the cutter bar. Plaintiff's narrative of the surroundings and what occurred is best stated in his own language, as follows:

"I put a sprag, and then we saw that machine had been cutting up into the coal. I suggested that we lift the back end of the machine up here, and throw the cutter bar down to get beneath the coal again. So I put a sprag up, when did that I was back here--at back end; sprag, a piece of timber; putting up sprags to hold the coal, keep it from falling until loader came along and would load it up; had put up sprag back of cutting bar. Train says, 'Where did you want this skid?' I says, 'Hold on a moment until I get through.' Had no other way to come except across here, this place between the coal and machine. When I was in the act of crossing on my hands and knees (the skid was a board that was used, underneath the back end of the machine to draw the cutter bar down), just before I started between the machine and the coal, I says, 'Hold your hand a moment, and I will come and show you.' When I was in the act of getting over on my hands and knees, the helper shouts, 'Pull in the chain,' and he turned on the power. Helper was Emery Savage. When I started through, the machine was not running, nor was it when Train made that remark."

According to the testimony of Train, before starting the machinery, he was careful to see that everything was clear; in answer to a question of Savage's as to whether the power was on, he replied he thought so, but would try it and see; before doing so, he said, "All right, all clear;" at the time, plaintiff was standing from 5 to 7 feet in the rear of the machine; when it commenced operating, he was at least 7 feet from it; there was no occasion or duty requiring him to go upon the cutter bar, or expose himself to danger. Savage testified that no skids were placed under the machine; that the cutter bar was not cutting into the coal; that plaintiff did not make the statement claimed by him, immediately before the accident; and otherwise and generally substantially corroborated Train's testimony. The power was turned on by the movement of a lever; but the machine was so constructed that the chain which Savage was attempting to adjust to the "jack" could be placed in motion and adjusted without setting the picks in motion. For a better understanding of the machine and its construction, we include herein a photograph thereof.

[SEE PHOTOGRAPH IN ORIGINAL]

Plaintiff testified that all of the parties present had on carbon lights, and that Train stood by the machine when he turned on the power.

The burden rested upon the plaintiff to show, by a fair preponderance of the evidence, that Train was incompetent that same was known to the defendant, or, by the exercise of reasonable care, should have been known to it; and that such incompetency was the proximate cause of his injury. It would seem almost incredible that plaintiff, who, for several days, had observed the demonstrator operate the machine, would have gone upon the cutter bar when the picks were in motion; yet, if the testimony of Train and Savage is accepted, he must have done so. Likewise, it is difficult to understand how a skilled and competent operator, knowing the position of plaintiff upon the cutter bar, would have turned on the current, without having first adjusted the lever that released the picks from motion, while the necessary machinery, for the purpose of adjusting the chain, was set in motion. That plaintiff was in a position of peril at the time the current was turned on, would seem to be the most reasonable deduction to be drawn from the evidence. A jury would not be likely to believe that, if he was several feet in the rear of a machine, which, when in operation, made a loud noise, in a position of perfect safety, he would voluntarily go upon the cutter bar and expose himself to certain injury. It was a question of fact for the jury to determine whether, even though it was necessary to start a part of the machinery in operation in the adjustment of the chain, a skilled and competent operator would have done so without having first taken the precaution to throw the dangerous machinery out of gear. The jury might reasonably have inferred that Train did not fully comprehend the mechanism of the machine, or the danger to plaintiff of turning on the current without releasing the cutter bar; or that he was...