Lynch v. Egypt Coal Co.
Decision Date | 17 February 1921 |
Docket Number | 32870. |
Citation | 181 N.W. 385,190 Iowa 1272 |
Parties | JOHN R. LYNCH, Appellee, v. EGYPT COAL COMPANY, Appellant |
Court | Iowa Supreme Court |
Appeal from Appanoose District Court.--SENECA CORNELL, Judge.
ACTION to recover damages for injury received in the employment of defendant. Verdict and judgment for plaintiff, from which defendant appeals.--Reversed and remanded.
Reversed and remanded.
A. B Dudley and H. E. Valentine, for appellant.
Wilson & Smith, for appellee.
Plaintiff claims that he was injured while being transported, with other employees, through the main entry of the mine in an empty pit car, hauled by means of a tail rope and engine that he was struck across the lower part of his back and hips by a timber or prop, with sheave wheel attached, the prop being used in the entry for the purpose of holding the sheave wheel, over which ran a cable, or tail rope, which was used to pull pit cars through the entry. The action is based on the negligence of defendant in permitting the timber or prop which held the sheave wheel to become loose, to such an extent that it fell over and hit the plaintiff.
Defendant denied any negligence, and sets up a counterclaim on several grounds, one cause of action alleged in the counterclaim being that the plaintiff conspired with several other of its miners to cause these miners to absent themselves and depart from the service of the defendant and to strike, which closed down the mine of the defendant for several months, on account of which defendant suffered damage.
The court submitted to the jury the question of defendant's negligence and plaintiff's injury, and refused to submit to the jury the portion of defendant's counterclaim relating to a strike. The jury returned a verdict in favor of plaintiff for $ 1,100. Evidence was offered by plaintiff tending to show that defendant company hauled its employees into the mine as they went to work, in a "trip" (train) of empty cars; that the cars were hauled by a tail rope system, by which a tail rope is attached to the inner end of a trip of cars, is run a distance into the mine, and passes over a bull wheel, and runs from this wheel back along the side of the entrance to a drum in the engine house; that this tail rope runs over sheave wheels attached to props, which props are wedged between the top and bottom rocks along the side of the entry, the sheave wheels being as close to the top rock as is practicable; that, on the morning on which plaintiff claims he received his injury, he was riding in to work, with three other miners, in the fourth car from the front end of the trip, and was sitting on the side of the car next to the side of the entry on which the tail rope ran; that the trip or train of cars was in charge of a tail rope rider, who rode along in the first car. As the trip approached the last prop holding the tail rope, the tail rope driver noticed that this prop holding the sheave wheel had become loose at the top, and was wobbly, and stopped the trip, the car in which plaintiff was riding being about opposite the prop when the trip stopped.
Plaintiff's claim is that the tail rope slackened sufficiently to allow the heavy sheave wheel to hit him on the back and hip, injuring him to such an extent that he was compelled to lose time and suffer much pain, and that his injury was likely to be permanent.
Evidence was offered by defendant to dispute plaintiff's claim that he was injured by the falling of the prop, by showing that he was hurt by some slate which fell on him some time before. Defendant sought to relieve itself of any negligence by introducing the testimony of other employees that the post was not loose on the last trip prior to the happening of the accident. The trip driver, who went back and forth past the post 36 times the last day the mine worked, prior to the accident, testified that the post was not loose. A mule driver who drover his mule into the mine, the morning of the accident, ahead of the main trip, passed the post in question, and saw nothing wrong with it, and testified that the post was not leaning over; for if it had been, he could not have gone by. Defendant's claim was that the plaintiff was not injured at all by this post or prop or wheel falling on him, and undertook to demonstrate that he could not thus have been injured.
The court overruled a motion made by defendant to direct a verdict in its favor, at the close of plaintiff's evidence, on the ground that the evidence failed to show any negligence on the part of the defendant, and afterwards overruled defendant's motion to set aside the verdict as not being supported by the evidence.
As an affirmative defense, defendant alleged a conspiracy between plaintiff and other of defendant's miners which resulted in a strike, and offered evidence in support of it. Such evidence tended to show that, in January, 1913, there was a dispute between the check weighman, elected by the miners, and the superintendent of defendant company; that plaintiff was, at that time, a member of the pit committee, which committee had charge of all disputes between the mine operators and the miners, and that, as such, plaintiff did most of the negotiating and talking with the superintendent regarding the disputes with the check weighman, and told the men to quit work; that, after the mine was closed down because of the strike, plaintiff tried to persuade one of the men who was working at the mine, and who was not a member of the union, to quit work; that, the night before the mine quit, they held a meeting, called by the plaintiff, who was president of the committee, at which meeting the plaintiff was present; that, the morning after the meeting, the plaintiff met the miners at the mouth of the mine, and told them that there would not be any work, and the men went home; and that plaintiff also told the superintendent that there would not be any work until the check weighman, who had been discharged by the superintendent, was put back, and also told the men that A. V. Vennell (the superintendent) would not put Smith (the weighman) back, and that they would not go to work. Defendant offered evidence to show that, because of this strike, the mine was closed from January 21, 1913, until April following; and that, in addition to the loss of profits, the defendant spent between $ 8,000 and $ 10,000 to put the mine in repair after the strike.
The court, on motion of plaintiff, withdrew from the jury all the testimony relative to the suspension of the mine, and all testimony tending to establish the work and expense in cleaning up the mine.
Assignments of error 1 and 2 are directed to the admission of statements of plaintiff made after the accident, testified to by witnesses Hood and James. This testimony was admitted, as being part of the res gestae. Defendant claims that the statements testified to were not part of the res gestae, but were mere narratives of what had occurred.
There is no confusion in announcements by this court of the rule. The difficulty is in the application of the rule to a particular statement offered in evidence. In Armil v. Chicago, B. & Q. R. Co., 70 Iowa 130, 30 N.W. 42, this court said:
In Clark v. Van Vleck, 135 Iowa 194, 112 N.W. 648, this court said:
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