Johnson v. Mammoth Vein Coal Co.

Decision Date09 November 1908
Citation114 S.W. 722
PartiesJOHNSON v. MAMMOTH VEIN COAL CO.
CourtArkansas Supreme Court

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Personal injury action by J. W. Johnson against the Mammoth Vein Coal Company. There was a directed verdict for defendant, and plaintiff appeals. Reversed and remanded.

Johnson brought suit against the Mammoth Vein Coal Company for a personal injury received in its mine; and, after hearing the evidence adduced, the circuit judge directed a verdict to be returned in favor of the defendant. The sole question on this appeal is whether the plaintiff's testimony presented such facts as would justify the case going to the jury. Johnson's testimony was to the following effect: He was an experienced miner, working in room No. 2, east entry, of the mine of the Mammoth Vein Coal Company on the 5th of March, 1906. The room was approximately 150 feet long by 20 feet wide. It was properly propped on both sides to within 15 or 20 feet of the face of the coal, the props being on both sides and in the middle. On the west side there were no props for 15 or 20 feet of the face of the coal, and on the east side there were props to within 8 or 10 feet of it. Johnson was injured on Wednesday, and on the preceding Monday, when he finished his work, he called upon the boss driver for props to be placed in his room by the next morning. The boss driver was the proper person upon whom to make this demand, as it was his business to furnish props to the miners upon demand. Johnson wanted these props to place under the west side of his roof, as he had discovered that that side was drummy for a space of four to eight feet. A drummy condition of a roof is where the rock is loosened to some extent, and such condition is dangerous, and this fact was known to him. Johnson had placed two shots, one on the west side, and one on the east side, of the room, and they had been fired, evidently after he had ceased work on Monday. He did not work on Tuesday, principally because he did not have the props. He demanded of the boss driver props again on Tuesday for Wednesday, and they were promised for that time. He also saw the pit boss, and had a promise from the pit boss that he would have the props on Wednesday; and, according to the custom of the mine, they should have been taken to him Wednesday morning on the first trip of the driver. The driver failed to bring them to him on that trip, and told him he had been unable to get them. After this default of the boss driver and the pit boss to furnish him props as demanded and as promised, Johnson continued to work on Wednesday until he was injured, which occurred some time after the failure to bring the props. He worked on the east side of his room, under that part of the roof which was not drummy and which he regarded as properly propped. He tested the roof on Monday, and again on Wednesday after the shots had been fired, and found it in the same condition that it was on Monday before the shots were fired. Four or five feet of the coal had been shot out on the west side by the firing of the shot there, and this would have some tendency to loosen the roof, but on sounding it, in his opinion, its condition had not been changed. Had he received the props he would have placed two or three on the west side six or eight feet from the face of the coal, and he would have considered that sufficient to have made that side safe. He did not consider that any were needed on the east side to make that side safe, as the props extended to within 8 or 10 feet of the coal on that side. When a drummy part of a roof falls, it may fall without affecting the other part, or it might possibly bring down some of the adjoining roof with it. While mining on the east side, close to his shot, the drummy part on the west side fell and brought down some of the roof over him, which hit him on the head and shoulders and knocked him down, and in falling he stumbled over a pick handle which struck him in the groin. This fall over the pick handle ruptured him, and he has been permanently disabled thereby. When he fell his light was put out, and he does not know how much of the roof fell. At the conclusion of the evidence the trial judge granted the motion of the defendant for a peremptory instruction, on the ground that under the decision of Patterson Coal Co. v. Poe, 81 Ark. 343, 99 S. W. 538, the plaintiff assumed the risk, and is not entitled to recover in the action. The plaintiff has properly brought the case here.

C. T. Wetherby, for appellant. Read & McDonough, for appellee.

HILL, C. J. (after stating the facts as above).

This case is predicated upon section 5352, Kirby's Dig., and upon section 5350 as amended by the Acts of 1905, which sections are as follows:

"Sec. 5352. The owner, agent or operator of any mine shall keep a sufficient amount of timber when required to be used as props, so that the workmen can 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 all such props when required and deliver said props to the place where cars are delivered."

"Sec. 5350. For any injury to persons or property occasioned by the willful violation of this act, or willful failure to comply with any of its provisions, a right of action shall accrue to any party injured for any direct damages sustained thereby; provided, that should death ensue from any such injury, a cause of action shall survive in favor first, of the widow and minor children of such deceased; if there be no widow or minor children, then to the father if living, then to the mother; if no mother, then to the brothers and sisters and their descendants." Acts 1905, p. 569.

Briefly stated, the facts are: Johnson found part of his room needed props. He thrice demanded them. The company failed to furnish them. With knowledge that they would not be furnished at that time he continued to work, and was injured by a falling roof. As will be seen from an examination of the foregoing statement, the facts of the case bring it within Patterson Coal Co. v. Poe, 81 Ark. 343, 99 S. W. 538. In that case, as in this one, the miner proceeded with his work without waiting for the props which he had requested, and which the mining company had failed to furnish him; and it was there held that "he was aware of the risk which, to some extent, attended the situation, but his continuance of the work manifested his willingness to assume that risk." In the case of Mammoth Vein Coal Co. v. Bubliss, 83 Ark. 567, 104 S. W. 210, the facts were essentially the same as in Patterson Coal Co. v. Poe, but the court preferred placing the ground of the decision upon the contributory negligence of the miner in working in an obviously dangerous place rather than to follow Patterson Coal Co. v. Poe, in placing it upon the assumption of risk, and pointed out in cases like those two, where the plaintiff exposes himself to a danger that is obvious and imminent, it is not of much practical importance whether the case is disposed of on the ground of assumed risk or contributory negligence. This case is memorable in the court as the last judicial work of the late Mr. Justice Riddick. Since the subject was reviewed in the Bubliss Case, the soundness of the decision in the Patterson-Poe Case has been questioned in the consultation room; and now it has been questioned at the bar in the instant case. The circuit judge properly directed a verdict for the defendant company on its authority. In view of this doubt the subject has been carefully examined and fully discussed, in order to determine whether to follow this case or disapprove it. Assumption of risk and contributory negligence are separate defenses; and, while it frequently happens that there is no practical importance in distinguishing the two where the same state of facts would make out a defense whether called by the one name or by the other, striking instances of which are found in the Bubliss and Poe Cases, yet they rest upon different bases, and each should be approached from a different viewpoint. However, where the danger is obvious, the two defenses are tested by the same standard in that particular, and then the differences are more theoretical than practical. This is pointed out in C. O. & G. Ry. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L. R. A. (N. S.) 837, St. L., I. M. & S. Ry. Co. v. Mangan, 112 S. W. 168, 13 Ark. Law Rep. 545, and by Judge Taft in the Narramore Case, hereinafter referred to. There is a class of cases where the distinction is vital, and this case happens to be such an one; for, as will be seen in the discussion later on, it presents a question of fact as to whether the plaintiff was guilty of contributory negligence. Hence the case cannot be turned, as a matter of law, upon contributory negligence. But the facts make out a case of assumption of risk for the master's breach of the statute above quoted if such breach is the subject-matter of an assumption of a risk by the servant in continuing in the service with knowledge of the master's breach of said statute.

In the beginning of this discussion, it may be well to point out the differences between the two defenses. In St. Louis Cordage Co. v. Miller, 126 Fed. 495, 61 C. C. A. 477, 63 L. R. A. 551, Judge Sanborn, speaking for the Circuit Court of Appeals for this circuit, said: "Assumption of risk is the voluntary contract of an ordinarily prudent servant to take the chances of the known or obvious dangers of his employment and to relieve his master of liability therefor. Contributory negligence is the causal action or omission of the servant without ordinary care of consequences. The one rests in contract, the other in tort." Mr. Justice Holmes speaking for the Supreme Court of the United States, in the case of Schlemmer v. B. R., etc., Ry. Co., 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681, said: "An early, if not the earliest,...

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