Madden v. Saylor Coal Co.

• Decision Date: 13 March 1907
• Parties: MADDEN v. SAYLOR COAL CO.
• Court: Iowa Supreme Court

133 Iowa 699

111 N.W. 57

MADDEN

v.SAYLOR COAL CO.

Supreme Court of Iowa.

March 13, 1907.

Appeal from District Court, Polk County; James A. Howe, Judge.

Suit to recover for personal injuries sustained by the plaintiff in the defendant's mine. Trial to a jury, and verdict and judgment for the plaintiff, from which the defendant appeals. Reversed.Ryan, Ryan & Ryan, for appellant.

Thomas A. Cheshire, for appellee.

SHERWIN, J.

On the 1st day of February 1904, the plaintiff was in the employ of the defendant as a mule driver in its mine. The entry in which he was driving when he received the injury complained of contained two tracks--one of which was commonly used for the passage of loaded cars to the shaft, and the other for the passage of empties back into the mine. At the time of the accident, the plaintiff was going south in this entry with some empty cars drawn by a mule, and was standing with one foot on the bumper of the forward car, and the other on the tail chain between the mule and the car. At the place where he was injured, there was an ascending grade into the mine, and the roof thereof was supported at this point, and for some distance on each side thereof, by props placed between the two tracks. At this particular time a trip of 18 loaded cars was going north toward the shaft and, just before the trip met the plaintiff, the plaintiff's mule swerved from the track on which he was traveling to the left between a couple of the props and was struck by the loaded cars, and thrown over against one of the props, knocking it from its place. The removal of this prop caused slate to fall from the roof of the entry upon the plaintiff, inflicting the injury of which he complains. The plaintiff alleged that the defendant was negligent in not having propped the entry at this point with cross-timbers, and in placing the props between the tracks as they did, without securely fastening them at the top and bottom; and, further, in not providing lights for the entry at the point where the plaintiff was injured. In its answer, the defendant alleged that the plaintiff was guilty of contributory negligence; that his injury was due to the negligence of his co-employé, and that the plaintiff assumed the risk of the condition of the entry when he entered the defendant's employment.

The evidence disclosed that just prior to the accident, which resulted in the plaintiff's injury, other mules which had been worked in the mine that day south of the point where the accident occurred were turned loose on the empty track and started north in front of their drivers about the time that the trip of loaded cars passed over the knuckle before reaching the point of the collision; that one of the mules in charge of the driver Shivers was in the lead of these loose mules, and that when he started north Shivers struck him with his hand; that it was one of the rules of the defendant corporation that loose mules should not be permitted on the track ahead of the loaded trip. The appellant claims that Shivers' mule stampeded the plaintiff's mule, and that the act of Shivers in turning his mule loose with a slap was the real or proximate cause of the plaintiff's injury, and that, because thereof, the plaintiff is not entitled to recover; Shivers being his co-employé. There is nothing in this contention. In the first place there is no competent evidence tending to show that Shivers' mule was the cause of the plaintiff's mule leaving the track rather than the loaded trip of 18 cars coming rapidly towards it on another track only two or three feet from the track on which it was traveling. Nor is there any testimony tending to show that Shivers was negligent in slapping his mule, or in turning it loose on the empty track, or that his actions caused the plaintiff's mule to turn in between the props. It follows therefore that defense cannot be predicated on any act of Shivers. But, if this were not so, the jury were justified in finding that the roof of the entry at the point in question was insecurely supported by the prop in question, and that it was negligence on the part of the defendant in placing these props between the two tracks without securely fastening them at both ends, so that they could not be displaced by such a collision. And it is a familiar rule that the mere fact that some other causes operated with the negligence of the defendant to produce the injury complained of does not relieve the defendant from liability. The original wrong of the defendant concurring with some other causes, and both operating proximately “at the same time in producing the injury, makes him liable, whether the other cause was one for which the defendant was responsible or not.” Gould v. Schermer, 101 Iowa, 582, 70 N. W. 697;Parmenter v. City of Marion, 113 Iowa, 297, 85 N. W. 90;West v. Ward, 77 Iowa, 323, 42 N. W. 309, 14 Am. St. Rep. 284;Langhammer v. City of Manchester, 99 Iowa, 295, 68 N. W. 688. It is a general rule that where several proximate causes contribute to an injury, each being a sufficient cause without the operation of which the accident would not have happened, it may be attributed to any or all of the causes; but it could not be attributed to a specific cause, unless without its operation the injury would not have happened. Phinney v. Railway Co., 122 Iowa, 488, 98 N. W. 358; 1 Thompson on the Law of Negligence, § 54, and cases cited; Watters v. City of Waterloo, 126 Iowa, 199, 101 N. W. 871. It is apparent from the record in this case that the injury might just as well have happened if Shivers had not turned his mule loose on the empty track, for, if the plaintiff's mule left its track for any other reason than the approach of Shivers' mule, the action of Shivers would not be an independent cause of the injury. The question of the assumption of risk was properly submitted to the jury, and the evidence justifies its finding against the contention of the appellant. The burden of affirmatively establishing such defense was upon the appellant, and the jury found against it.

The appellant contends that the question whether the entry at the point in question should have been timbered by cross-timbers was immaterial to any issue in the case. But this cannot be so, because it was incumbent upon the plaintiff to show that the defendant was negligent in using props in the way and manner that it did, and, for the purpose of so showing, it was clearly competent to show another safe and convenient way of supporting the roof of the entry. There was no error in refusing to permit one of the appellant's witnesses to testify as to what caused Madden's mule to turn from the empty track. The answer could have been nothing more than the conclusion of the witness drawn from facts which were before the jury, and from which the jury could draw its own conclusion. Complaint is made of the admission of testimony on the part of the plaintiff as to how the roof of an entry should be timbered. There is no merit in the complaint, however, because the defendant in support of its defense had offered evidence as to the usual custom of supporting similar entries in the mining districts where it is located, and the evidence objected to was clearly competent in rebuttal. The appellant contends that instructions asked by it to the effect that it was its duty to use reasonable care to furnish the plaintiff a safe place to work should have been given, and urged that while the instruction given by the court on the degree of care required by the appellant was abstractly correct, it should have been more particularly applied to the facts in this case. We think the jury was sufficiently instructed on this branch of the case, and that no reversal should be had because of the court's failure in the respect indicated.

In its fourteenth...