Melkusch v. Victor Am. Fuel Co.

• Decision Date: 21 February 1916
• Docket Number: No. 1810.,1810.
• Citation: Melkusch v. Victor American Fuel Co., 21 N.M. 396, 155 P. 727, 1916 NMSC 7 (N.M. 1916)
• Court: New Mexico Supreme Court
• Parties: MELKUSCHv.VICTOR AMERICAN FUEL CO.

21 N.M. 396

155 P. 727

MELKUSCH

v.VICTOR AMERICAN FUEL CO.

No. 1810.

Supreme Court of New Mexico.

Feb. 21, 1916.

Syllabus by the Court.

A miner employed in a coal mine does not assume the risk of injury from the master's violation of a statutory duty to provide an ample supply of timbers and to cause the same to be delivered on the pit car, at the request of the miners, as near as practicable to the place where the same are to be used, as required by paragraph 11, subsec.64, § 3507,Code 1915.

Paragraph 6, subsec.65, § 3508,Code 1915, which makes it a penal offense for any coal miner to work or remain in any unsafe or dangerous place in a coal mine, knowing the same to be such, except for the purpose of remedying such condition, construed.Held, that this section does not prohibit a miner from remaining or working in a room where a portion of the roof requires timbers and supports, in order to render it safe, so long as the place where he is working is a safe place, and does not require timbers or supports; that, under this section, he is not guilty so long as he remains from beneath the particular portion of the roof which is unsafe and dangerous.

Contributory negligence being an affirmative defense, the burden of establishing it rests upon the defendant.

Evidence reviewed.Held that, under the plaintiff's evidence, he was entitled to go to the jury upon the question as to whether he was working in a dangerous or unsafe place, knowing the same to be such.

Where men of reasonable minds might draw different conclusions from the evidence, the case is for the jury, and this is so although the evidence is uncontradicted.

A servant who is suddenly exposed to great and imminent danger is not expected to act with that degree of prudence which would otherwise be obligatory.

Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.

Action by Matt Melkusch against the Victor American Fuel Company.From a judgment for defendant, plaintiff appeals.Reversed, with directions to award new trial.

Where men of reasonable minds might draw different conclusions from the evidence, the case is for the jury, and this is so although the evidence is uncontradicted.

The complaint in this cause alleged that the plaintiff below, who is appellant here, was on the 26th day of April, 1913, engaged in the service of the defendant as a coal miner; that it was the duty of the defendant to furnish plaintiff with a safe and suitable place in which to perform his work, and to provide him with safe and suitable tools, props, and equipment with which to perform such services; that plaintiff requested timber to be used for the purpose of properly supporting the roof of the room in the mine of the defendant company, where plaintiff was employed as a miner, for a period of two or three days prior to the accident; and that the defendant and its employés failed and neglected to supply plaintiff with the timber requested, or with any timber for the support of the roof; and that by reason of this neglect the plaintiff was injured; and that the roof of said room fell because of the failure and neglect of the defendant and its officers, servants, and agents to supply timber.The accident occurred on the 26th day of April, and was a result, as alleged by plaintiff, of a fall of a portion of the roof of the room where he was engaged in the service of the defendant at the time, which resulted in the crushing of the right arm of the plaintiff, necessitating its amputation.The defendant below by way of answer, after denying the essential facts upon which its negligence is predicated, pleaded assumption of risk by the plaintiff, contributory negligence, and the fellow-servant doctrine.Reply denying the new matters pleaded in the answer was filed by the plaintiff, and the cause proceeded to trial.After both parties had introduced all their evidence, the defendant moved for an instructed verdict, setting forth in its motion fifteen grounds upon which it relied for the relief sought.Only three of these grounds need be stated, as the remainder were either without merit or were obviated by an amendment to the complaint which upon motion the plaintiff was allowed to make.They were as follows:

“First.The complaint filed herein does not state facts sufficient to constitute a cause of action.

Second (Sixth).The plaintiff(complaint) in this case and the testimony on behalf of the plaintiff, supplemented by the testimony introduced on behalf of the defendant, discloses as a matter of law that plaintiff assumed the risk of the accident which befell him at the time and place mentioned in the complaint.

Third (Twelfth).It appears from the testimony in this case that plaintiff was guilty of a positive and distinct violation of the statutes of this state in failing to take down or prop the roof of coal and caused the injury complained of.”

The motion was sustained, apparently upon the theory that the evidence disclosed that plaintiff was guilty of the violation of a statute, and that such violation of law contributed proximately to his injuries.The statute in question will be found quoted in the opinion.From a judgment dismissing the complaint on the merits, this appeal is prosecuted.

A. T. Hannett, of Gallup, and George S. Klock, of Albuquerque, for appellant.

R. E. Twitchell, of Santa Fé, Alfred Ruiz, of Gallup, and Yeaman & Gove, of Denver, Colo., for appellee.

ROBERTS, C. J.(after stating the facts as above).

[1] Under the facts in this case as disclosed by the record, the paramount question presented is whether the appellant assumed the risk incident to the appellee's violation of the statute, which required it to “provide an ample supply of timbers and to cause the same to be delivered on the pit car, at the request of the miners, as near as practicable to the place where the same are to be used”(paragraph 11, subsec.64, § 3507,Code 1915), failure to comply with which is made a penal offense by subsection 20 of the same section.Upon the question as to whether there had been a failure to furnish such timbers and props there was a direct conflict in the evidence; hence, if appellant did not assume the risk, he was entitled to go to the jury upon this question.

The English and American decisions dealing with the question will be found collected in the notes to the following cases reported in L. R. A. Reports: O'Maley v. South Boston Gaslight Co., 47 L. R. A. 161, subd. “h,”p. 190;Denver & Rio Grande R. R. Co. v. Norgate, 6 L. R. A. (N. S.) 981;Johnson v. Mammoth Vein Coal Co., 19 L. R. A. (N. S.) 646;Hill v. Saugestad, 22 L. R. A. (N. S.) 634;Poli v. Numa Block Coal Co., 33 L. R. A. (N. S.) 646;Fitzwater v. Warren, 42 L. R. A. (N. S.) 1229;Curtis & Gartside Co. v. Pribyl, 49 L. R. A. (N. S.) 471.From cases collected in the above notes it will be seen that there is an irreconcilable conflict in the authorities, both federal and state, on the question.The case of D. & R. G. R. R. Co. v. Norgate, supra, 141 Fed. 247, 72 C. C. A. 365, 6 L. R. A. (N. S.) 981, 5 Ann. Cas. 448, is regarded generally as the leading American case holding that the servant assumes the risk, while the case of Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68, is the leading case holding to the contrary.Both sides of the question have been so often and so ably stated and presented by eminent judges that it is hardly possible to add anything to the argument on either side.It is noteworthy that the modern trend of authority is in favor of the rule that the servant does not assume the risk.The reason for this holding is so well stated by the Illinois Supreme Court in the case of Streeter v. Western Wheeled Scraper Co., 254 Ill. 244, 98 N. E. 541, 41 L. R. A. (N. S.) 628, Ann. Cas. 1913C, 204, that we quote from it at length:

“The passage of a law like that now under consideration implies that the class of employés for whose protection it was intended had not been able to protect themselves without it.Its object, as indicated by the title of the act, is to provide for the health, safety, and comfort of employés in factories, mercantile establishments, mills, and workshops in this state, and the authority for it is found in the police power of the state.The effect of it is to create a new situation in the relation of master and servant, and to present the new question whether the doctrine of assumption of risk heretofore applied to that relation should apply in the same way to the new conditions.The duty of the master has been changed.He may no longer conduct his business in his own way.He may no longer use such machinery and appliances as he chooses.The measure of his duty is no longer reasonable care to furnish a safe place and safe machinery and tools, but, in addition to such reasonable care, he must use in his business the means and methods required by the statute.The law does not leave to his judgment the reasonableness of inclosing or protecting dangerous machinery, or permit him to expose to increased and unlawful dangers such of his employés as may be driven by force of circumstances to continue in his employ rather than leave it and take chances on securing employment elsewhere under lawful conditions.The guarding of the machinery mentioned in the statute is a duty required of the master for the protection of his workmen, and he owes the specific duty to each person in his employ.To omit it is a misdemeanor subjecting him to a criminal prosecution.The necessity for such legislation is suggested by a consideration of a sentence from the opinion in the Knisley Case [148 N. Y. 372, 42 N. E. 986, 32 L. R. A. 367], which says: ‘There is no rule of public policy which prevents an employé from deciding whether, in view of increased wages, the difficulties of obtaining employment, or other sufficient reasons, it may not be wise and prudent to accept employment subject to the...