Mercury Mining Co. v. Chambers

• Decision Date: 08 March 1937
• Docket Number: 4-4549
• Parties: MERCURY MINING COMPANY v. CHAMBERS
• Court: Arkansas Supreme Court

102 S.W.2d 543

193 Ark. 771

MERCURY MINING COMPANY v. CHAMBERS

4-4549

Supreme Court of Arkansas

March 8, 1937

Appeal from Pike Circuit Court; A. P. Steel, Judge; affirmed.

Judgment affirmed.

John Owens and George R. Steel, for appellant.

Tom Kidd, for appellee.

OPINION

MEHAFFY, J.

This is an action to recover damages for personal injury alleged to have been caused by the negligence of appellant. Appellee's complaint alleges that on January 20, 1936 appellee was in the employ of the appellant and was required to go into the shaft to work, and while working at the bottom of the shaft, and while in the exercise of due care, was injured by the negligence of appellant. The shaft was approximately 6 x 8 feet, and 60 feet deep. Appellant was 47 years old, but had never had any experience in mining operations until he began to work for appellant in January 1936. When he was first employed he worked on top of the ground, and when he was injured he had gone down into the shaft to work the second time. His duties in the shaft were shoveling muck, rock and shale from the bottom of the shaft into a bucket which held approximately one-half ton. He was furnished lights so that he could see and observe the nature and character of the walls. The walls of the shaft were braced down to within 10 feet of the bottom, and while working down at the bottom, performing the duties required of him, several hundred pounds of rock, shale, dirt and debris slid and fell off the walls of the shaft, and struck and injured the appellee breaking his jaw bone, breaking six ribs, breaking the little finger on the right hand, causing a scalp wound across the head, knocked the right shoulder down and bruised, maimed and wounded his entire body.

The appellant answered denying all the material allegations of the complaint, and alleging that appellee assumed the risk, and was guilty of contributory negligence.

There was a judgment for $ 1,250 and this appeal is prosecuted to reverse said judgment.

The appellee testified in substance that he had farmed mostly, and did not have any experience in working in mines until he went to work for appellant. He began work on January 12 and received the injury on January 20. He first worked on top of the ground, but a few days before his injury he went under the ground and worked a while. He was injured about 3 o'clock in the morning; had started to work at 6 o'clock in the evening. His nephew, Ira Chambers, was foreman. No one gave appellee any instructions other than telling him to get in the shaft and work. The shaft was braced with oak timber. Appellee was working at the bottom or floor of the shaft, and it was ten or twelve feet above to the timbers. Witness did not think it was dangerous, and relied on his master's superior knowledge, and thought it was safe. While he was at work shoveling muck from the bottom and putting it in the bucket, the wall gave way and slid in, struck witness, knocked him unconscious, and when he came to he was lying on his back with the rocks on him; suffered the injuries described in his complaint; he was carried to the hospital at Nashville. The only work witness had ever done underground, was digging in wells 25 or 30 feet deep, and it was not necessary to brace these wells. If witness had known there was any danger, he would not have gone down. Witness had nothing to do with putting the timbers in or bracing the walls. The day crew did this, and Ezra Ballard was foreman of this crew.

Mr. Funk was the general manager, and Ballard testified that they used two-inch oak timbers to brace the walls, and that he, Ballard, had asked Funk for timbers to timber the shaft. Mr. Funk did not furnish them. Witness told him they needed the timber for this particular shaft. He asked for timbers on two different days, and the appellant did not furnish the timbers when witness advised they needed them. He said it was practical to keep the timber even with the ground at all times, and that this should be done, and the reason he did not do it was because he did not have the timbers.

The only evidence contradicting appellee's statement about how the injury occurred was a statement by Lester Cook. Appellant filed petition for continuance, alleging that Cook was a material witness, and if present would testify that the appellee was digging down and removing rock from the walls. There was no other witness in the shaft at the time. A continuance was not granted, but Cook's statement was introduced in evidence.

There...