Little v. The Norton Coal Company

• Decision Date: 09 July 1910
• Docket Number: 16,638
• Citation: 109 P. 768,83 Kan. 232
• Parties: T. E. LITTLE, Appellee, v. THE NORTON COAL COMPANY, Appellant
• Court: Kansas Supreme Court

109 P. 768

83 Kan. 232

T. E. LITTLE, Appellee, v. THE NORTON COAL COMPANY, Appellant

No. 16,638

Supreme Court of Kansas

July 9, 1910

Decided July, 1910.

Appeal from Cherokee district court.

Judgment affirmed.

A. H Skidmore, and S. L. Walker, for the appellant.

J. N Dunbar, and Al. F. Williams, for the appellee.

OPINION

Per Curiam:

The plaintiff was injured while at work in a mine by the falling of a loose rock from an entry. The jury awarded him damages in the sum of $ 1000. The defendant, who is the mine owner, appeals.

Every claim of error involves the same proposition of law. The demurrer to the petition, the demurrer to the evidence, the instructions requested and refused, the objection to the instructions given and the motion for judgment on the findings are predicated upon the theory that the plaintiff could not recover without alleging and proving that the defendant either had actual notice that the rock in the roof of the entry was loose or that it was in that condition for a sufficient length of time to charge the defendant with constructive notice thereof. If this were an action to recover for injuries caused by the omission of a common-law duty of the master the defendant's theory would apply; but the action is based upon a duty which the statute imposes upon the defendant to keep careful watch to "see that as the miners advance their excavations all loose coal, slate and rock overhead are carefully secured against falling in upon the traveling-ways." (Laws 1883, ch. 117, § 6, Gen. Stat. 1909, § 4987.)

In Schwarzschild v. Weeks, 72 Kan. 190, 198, 83 P. 406, the following quotation was employed: " 'The employer is chargeable with knowledge of whatever it is his duty to find out and know.' 5 Thomp. Com. L. of Neg. § 5404." In Madison v. Clippinger, 74 Kan. 700, 88 P. 260, it was said:

"That the violation of a duty expressly imposed by a statute upon an owner or operator of machinery dangerous to employees or to the public is negligence which prima facie imposes liability for damages resulting therefrom is well-settled law." (p. 703.)

The defendant, therefore, can not escape liability for its failure to perform the duty on the ground that it did not know that the rock was likely to fall; nor is it any answer to say that because the plaintiff (who was a miner of long experience) testified that he had not noticed that the particular rock which fell upon him was loose before it fell he was guilty of contributory negligence, or that for the same reason the defendant could not have known the condition of the entry. No duty was imposed upon the plaintiff to keep careful watch to see that loose rock did...