Mammoth Vein Coal Co. v. Looper

• Decision Date: 13 July 1908
• Citation: 112 S.W. 390,87 Ark. 217
• Parties: MAMMOTH VEIN COAL COMPANY v. LOOPER
• Court: Arkansas Supreme Court

112 S.W. 390

87 Ark. 217

MAMMOTH VEIN COAL COMPANY v. LOOPER

Supreme Court of Arkansas

July 13, 1908

Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; affirmed.

Judgement affirmed.

Read & McDonough, for appellant.

1. The court should have given a peremptory instruction in favor of appellant. The burden of proving negligence on the part of appellant was on the appellee. 79 Ark. 440. The happening of the accident does not warrant the finding of negligence. 101 S.W. 738. The falling of the rock is of itself no evidence of the master's negligence. 82 P. 387.

2. Appellee is shown to be an experienced miner. He voluntarily undertook to put his room in a condition that a car could be taken out. He assumed the risk. Not only so, but under the facts in evidence he is also barred of recovery by his own contributory negligence. 58 Ark. 177; 77 Ark. 367; 104 S.W 174; 77 Ark. 290; 79 Ark. 439; 125 Ill.App. 622; 153 F. 358; 90 P. 433; 152 F. 417; 66 A. 576; 102 S.W. 740; 65 A. 1075. It is the duty of the servant to inform himself of the situation and of the risks incident to the work he is going to perform; and where the danger is obvious, or where he has same or equal means of knowing the danger as the master, he assumes the risk. 100 S.W. 83; 67 A. 148; 57 S.E. 1041. He assumes the risk of dangers which he might have discovered by ordinary examination. 67 A. 177; Id. 343.

Jesse A. Harp, for appellee.

OPINION

HILL, C. J.

Looper was a coal miner, working in the mine of the appellant company, and was injured by a rock falling from the roof in an entry. He brought suit against the company and recovered judgment, and the company has appealed.

The principal question argued is the sufficiency of the evidence to sustain the verdict. The coal company introduced no testimony, and the case was tried on the evidence introduced by the plaintiff, which showed this state of facts: Looper was engaged in digging coal in a room on the second east entry, and, owing to a prop sustaining the roof being placed in the entry where the mine track turned into his room, the mine cars were unable to get into his room to carry out his coal. On the morning of the accident he made repeated demands for cars, and one was taken into his room by lifting it off the track; and when it was loaded, and he desired to send it out, it could not be taken out on account of this prop. He made demand for the prop to be removed, and the mine foreman sent word to him to do it himself. He then went under the rock supported by the prop in order to change its location, but before he had done anything the rock fell upon him, and injured him.

The evidence shows that it is the duty of a mine owner to keep the entries in safe condition, and it is the duty of the miner to care for his room, as he is constantly changing its roof and face in doing his work. The rock supported by the prop which fell, while not in the direct path of the miners in using the entry as a passage way of the mine, was in the entry, and the proper care of the whole entry was the duty of the master.

Looper testified that he did not know that the rock was dangerous, that he had never noticed it, and had made no test of it to ascertain whether it was loose. He had not got ready to examine it nor begun his work when it fell. He described it as it appeared after it had fallen as follows: "The rock seemed to be a water-slip rock; water run over the rock; could see kind of settlings on it; yellowish settlings; something like copperas; showed that the water had been running over it for sometime."

The other witness, who was a driver in the mine, and had carried the car into Looper's room, testified that he had not noticed the condition of the rock before it fell, but he described it as he saw it after it had fallen as a flat rock and a "water-slip" rock.

What was said in St. Louis & S. F. Rd. Co. v Wells, 82 Ark. 372, 101 S.W. 738, applies here. "The only question is whether the evidence showed a defect which the defendant could, by proper inspection, have discovered, for under no other circumstances could it be held responsible for the injury which resulted. Negligence of the company can not be inferred merely from the occurrence of the accident. That must be proved, and the burden of establishing it is on the party who...