Lindquist v. Pacific Coast Coal Co.

• Decision Date: 10 August 1914
• Docket Number: 11967.
• Citation: 81 Wash. 73,142 P. 445
• Court: Washington Supreme Court
• Parties: LINDQUIST et al. v. PACIFIC COAST COAL CO.

142 P. 445

81 Wash. 73

LINDQUIST et al. v. PACIFIC COAST COAL CO.

No. 11967.

Supreme Court of Washington

August 10, 1914

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Hjalmer Lindquist, by his guardian ad litem, and others against the Pacific Coast Coal Company. Judgment for defendant, and plaintiffs appeal. Reversed.

S. A Keenan, of Seattle, for appellants.

Farrell, Kane & Stratton and Stanley J. Padden, all of Seattle, for respondent.

CHADWICK J.

This action was brought by the infant sons of Matt Lindquist to recover damages on account of the death of their father, which occurred in the coal mine of the defendant. The method of mining was to open chutes so as to divide the coal seam into pillars. These chutes were 10 feet wide and were driven up the vein from the main gangway at right angles thereto and about 35 feet apart. These pillars were divided into rooms or sections by driving crosscuts 4 feet wide from chuts to chute every 60 feet; each section being therefore 35 by 60 feet. Each chute was divided by timbers into two parts; the one being used as a chute for running the coal out of the mine and the other as a manway. Lindquist and his partner were experienced miners and had been working in the section where the accident occurred for some time. The chute on the right-hand side of the section had caved and was out of use, so that it was necessary to bring all of the coal out of the left-hand chute. The miners had in consequence begun at one side of the section and were mining it over to the other side. It was the custom in that mine to timber with uprights or props, with caps to support the roof. On the afternoon before the accident occurred, Lindquist and his partner observed some evidences of a squeeze in the upper right-hand corner of the section. They accordingly quit working at that point. The next morning, at about 8 o'clock, the mine foreman, whose duty it was to inspect the work from time to time and to look after the safety of the men, came in and inspected the place that Lindquist and his partner had believed to be dangerous on the night before. It was the judgment of the foreman that the place was safe, and he accordingly ordered the miners to proceed and take out the coal. They did so, timbering, as the work progressed, toward the corner of the section. While thus engaged at somewhere between half past 12 and 2 o'clock in the afternoon, the roof squeezed, and Lindquist was killed. His partner escaped. The case is predicated upon several charges of negligence. It was brought to trial upon denials of negligence and affirmative defenses, charging contributory negligence and assumption of risk and that the plaintiffs' intestate and the foreman were fellow servants. When the plaintiffs had rested their case, the court entertained and allowed a motion for a nonsuit. From a judgment of dismissal, this appeal is prosecuted.

The court, in passing upon the motion for a nonsuit, was of opinion that the testimony of one of the witnesses called on behalf of the plaintiffs exonerated the defendant from all blame. We have read the testimony of the witness, and, without reviewing it, we are satisfied that it will not bear the construction put upon it by the trial judge. Admitting that it is not in entire harmony with plaintiffs' theory of the case, it is nevertheless no more than the testimony of one witness. It was the province of the jury to weigh and harmonize it, if possible, or to accept it or reject it as they saw fit, considering all the facts and circumstances of the case.

It is urged that although the deceased would have been justified in following the judgment of the foreman under the rule announced in Beseloff v. Strandberg, 62 Wash. 39, 113 P. 250; Cox v. Wilkeson Coal & Coke Co., 61 Wash. 345, 112 P. 231; Christiansen v. McLellan, 74 Wash. 318, 133 [81 Wash. 76] P. 434; Lamoon v. Smith Cement Brick Co., 74 Wash. 165, 132 P. 880; Olson v. Carlson, 74 Wash. 39, 132 P. 721--nevertheless the lapse of time between 8 o'clock and about 2 o'clock in the afternoon was such, and especially so when taking into consideration the constantly changing situation that the case is exempted from that rule, and deceased must be held to have assumed the risk or was guilty of contributory negligence.

It is an undoubted rule that where the place of work is being constantly changed as the work progresses, as in the construction of buildings and the like, a workman will be held to have assumed the risks incident to his labors, but this rule is not without a very important and reasonable exception. It often happens in the prosecution of a particular piece or kind of work, as, for instance, mining, that the safety of the place will become an object of inquiry calling for an expression of judgment.

We have held repeatedly that a workman who follows the assurance and judgment of the master will not be charged with an assumption of risk or be held to be guilty of contributory negligence, as a matter of law. The reason is obvious. It inheres in the very doubt that called for the original inquiry. The assurance is not that one blow may be struck or one shovel full of earth may be turned in safety, but that it is safe to remain in the questioned situation long enough to accomplish the thing to be done, which in this case was to remove the coal from that part of the pillar where the squeeze occurred.

The foreman, and consequently the master, is charged with knowledge that it would take time, possibly hours of time, to do the thing he said could be safely done. Now when the workmen proceeded in the usual and customary way, propping the roof with posts and caps as they went, they should not be charged, for the assurance of the foreman implied that they...