Johnson v. Mammoth Vein Coal Co.

• Decision Date: 09 November 1908
• Citation: 123 S.W. 1180
• Parties: JOHNSON v. MAMMOTH VEIN COAL CO.
• Court: Arkansas Supreme Court

Page 1180

123 S.W. 1180

JOHNSON v. MAMMOTH VEIN COAL CO.

Supreme Court of Arkansas.

November 9, 1908.

For majority opinion, see 114 S. W. 722.

McCULLOCH, C. J. (dissenting).

I do not hesitate in following the line of cases which are approved in the majority opinion, holding that the servant does not assume the risk of danger created by the failure of the master to perform the statutory duty of furnishing a safe place. While the authorities on that question are nearly evenly divided numerically, I think those which hold against the servant's assumption of risk under those circumstances are more in accord with sound reason and with natural justice. But what I object to in the decision of the majority is the application of that rule to a statute which does not require the master to furnish a safe place in which the servant is to work. The statute in question merely requires the master to furnish props for the servant to use in making his working place safe. It clearly contemplates — what is shown to be the custom in mining — that the servant is to look to the safety of his working place, and he is the sole judge from time to time of its safety. No duty is put upon the master except to furnish props. The latter is not even required to inspect the place, nor to ascertain whether it is kept safe. The working place of a coal miner is more or less dangerous at all times, for he is constantly extending his walls as he works out the coal; and because of the very nature of the work he must determine for himself when he can safely proceed beneath an unpropped roof. He calls on his employer for props as he needs them; and the fact that he calls for them manifests his knowledge of the fact that the roof of his room needs to be propped.

Now, the miner being the sole judge of the safety of his working place, and it being his duty to decide for himself when props should be used, it seems plain to me that when he proceeds with his work beneath an unpropped roof, or beneath one which, according to his own judgment, is insufficiently propped, he necessarily assumes whatever danger there is in so doing. He is guided entirely by his own judgment in determining whether or not it is safe to work in the place. It being a part of the contract that he shall make the place safe, it follows as a part of the contract that he should bear the loss of injury which results from a failure to keep it safe; and he is not absolved from that responsibility by the failure of the employer to furnish material with which to make the place of work safe. Notwithstanding the failure of the employer to...