Minton v. La Follette Coal, Iron & R. Co.

• Decision Date: 28 March 1907
• Citation: 101 S.W. 178,117 Tenn. 415
• Parties: MINTON v. LA FOLLETTE COAL, IRON & R. CO.
• Court: Tennessee Supreme Court

101 S.W. 178

117 Tenn. 415

MINTON v. LA FOLLETTE COAL, IRON & R. CO.

Supreme Court of Tennessee.

March 28, 1907

Appeal from Circuit Court, Campbell County; G. McHenderson, Judge.

Action by W. M. Minton against the La Follette Coal, Iron & Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

H. B Lindsay and W. A. Owens, for appellant.

J. A Fowler and Agee & Peters, for appellee.

McALISTER J.

The plaintiff below recovered a verdict and judgment against the defendant company for the sum of $3,000 as damages for personal injuries. The defendant company appealed, and has assigned errors.

It is alleged in the declaration that the defendant company was operating iron ore mines near the city of La Follette, in Campbell county, Tenn., in which what was known as "shaft No. 2," from which shaft the ore was hoisted by means of steam engines, was defective and not up to the standard of engineering skill and mining; and while the plaintiff was in the shaft a large piece of iron ore fell about 50 feet from the surface and struck plaintiff on the head.

The facts are more specifically stated in the fourth count of the declaration as follows:

"Plaintiff was employed by defendant and directed to repair a pump or other machinery situated near the bottom of said shaft, and was also directed by a superior servant to procure proper implements with which to make said repairs, and in order to procure said implements it became necessary or proper for him to enter upon a scaffold in said shaft, which was placed there for the use of employés. In passing along the first level of said mine, from one side of said shaft to the other, and as plaintiff was stepping into the shaft upon the scaffold, a heavy piece of ore fell from the skip car, at or near the top of said shaft, down the same, and struck plaintiff on the head, fracturing his skull, and rendering him senseless for two weeks, resulting in paralysis and permanent disability.

The place where plaintiff was put to work was unsafe and dangerous. Defendant had given plaintiff no warning, advice and instructions with reference to the construction of said shaft and machinery."

Plea of not guilty and statute of limitations of one year were interposed by the defendant.

The first assignment we shall consider is that there is no evidence, when taken as a whole, to sustain the verdict, and that the undisputed evidence showed that plaintiff was injured as the direct result of the negligence of his fellow servants, who dropped a piece of ore which struck plaintiff.

Charles Willis was the general mine foreman, and employed to sink shaft No. 2 in defendant's mine. Willis put Minton to work fixing up the shaft "in general." Minton procured certain tools and started into the shaft to begin preparations at the bottom. Searles was general superintendent of the company, and admits he had a talk with Minton about taking the contract, but says they had not come to a perfect understanding about the matter. Willis says the contract between Searles, general superintendent, and Minton, had been practically closed, but was not signed.

Minton was working in the line of his employment when he was injured. He discovered, on going to bottom of shaft, that pumps must be repaired and must be lowered, and that in doing so it would be necessary to disconnect and again connect the pipes. He found that it would also be necessary to sink the shaft a little lower in order to put in some timbers.

Minton states that "that morning, when he entered the shaft at the first level, he saw Davis, an old acquaintance, and passed over the shaft and had a conversation with Davis, and while there saw an iron bar, and that when he started into the shaft, at the time he was injured, it was his purpose to go to the pump, detach the pipes, and lower it for the purpose of making the proper connections and putting on or off a flange, and it was necessary for him to have an instrument similar to this bar, and for that reason, he started over to procure it from Davis, and was injured while doing so."

Davis corroborates Minton, wherein Davis testifies that he did have a bar, which he used in punching the ore into the skip.

Plaintiff insists he was injured while in the skip section of the shaft, passing across the plank, as claimed by him, and was not sitting on the plank talking to Davis, as contended by plaintiff in error.

Minton himself testifies positively that he had descended into the other section of the shaft to the first level and had opened the door in the partition between the two sections of the shaft, and had started into the skip section, and while he yet had hold of the door with his hand, and just as his head got inside the shaft, this ore fell and knocked him unconscious.

It is true Davis testified for the defendant below that Minton was sitting in the shaft on the plankway, talking to him at the time the rock fell and struck him. Davis is corroborated in this statement by Wm. Henry and Geo. W. Taylor. It is insisted on behalf of plaintiff that these witnesses confused the two occasions. On the first visit into the shaft, Minton admits that he was talking to Davis on the plankway; but, when he was injured, he had just opened the door and started into the shaft in the plankway.

The evidence further tends to show that this plank was placed across the skipway to enable employés to pass from one side of the skip to the other, and that it was habitually used by the men for that purpose, and in fact there was no other way for them to get to the east side of the skipway.

There is also evidence tending to show that the skipway was out of repair at the top near the point where it dumped, and in consequence thereof the skip had been several times wrecked at that point. There is proof that the skipway was examined a short time after the accident, and it had spread at the top and was out of fix, etc.

Defendant's testimony tended to show that on this occasion, the skip having been wrecked, several employés went up to repair it, and had been at work on it for a half hour. One of the men had taken this piece of iron ore and made out of it a heel for a prize, and about the time they got the skip in position the ore slipped and fell into the shaft.

It was further contended on behalf of the company that the plaintiff was perfectly familiar with every arrangement about the shaft; that he was an expert, and had himself, under the employment of the company some months prior thereto, sunk this shaft to its present depth; that he had constructed the gangway across said hallway in the shaft, and that after he had ceased to drive the shaft any deeper he had, as foreman of said shaft, driven the levels to the east and west therefrom, where he worked until some three months prior to the date of his injury; that he came back to La Follette a few days before his injury for the purpose of taking a contract to sink said shaft still deeper; that at the time defendant in error was injured he was on said gangway at the first level, talking to the witness Davis, and was not engaged in the pursuit of any business as an employé of the company; that he negligently exposed himself to danger by standing or sitting on said plankway while the haulage skip car was being operated in said compartment; and that while he was so sitting a piece of iron ore fell from above, negligently dropped by a fellow servant while engaged in some duty at the top of the shaft.

It is insisted on behalf of the company that this shaft was being constructed in the usual way, and that all its equipments were in a reasonable state of repair, and that the injury to plaintiff was not the result of any negligence on the part of the company, but resulted from the negligence of a fellow servant of the plaintiff, and from the latter's gross negligence in assuming and remaining in a dangerous and exposed place, with full knowledge of its conditions, without taking any precautions to protect himself. This is a full statement of the theory of the defendant company.

We are of opinion, however, the company was negligent in not having provided a covering over the plankway to protect employés in crossing it from the danger of the falling ore. There is proof tending to show that lumps of ore frequently fell down the shaft, and this had been going on for some time, and there was nothing to protect the men against falling ore. One witness says it was an ordinary thing for ore to fall. It is in proof that the company knew that this ore was accustomed to fall, and had warned its men against passing through the skipway when the skip was above the level; but plaintiff testifies that no such warning had...