Mt. Marion Coal Mining Co. v. Holt

• Decision Date: 13 March 1909
• Citation: 118 S.W. 825
• Parties: MT. MARION COAL MINING CO. v. HOLT et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

118 S.W. 825

MT. MARION COAL MINING CO. v. HOLT et al.^†

Court of Civil Appeals of Texas.

March 13, 1909.

Rehearing Denied April 17, 1909.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

Action by Mrs. Ella Holt and others against the Mt. Marion Coal Mining Company. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.

John W. Wray, for appellant. W. P. Gibbs, A. Stevenson, and E. B. Ritchie, for appellees.

CONNER, C. J.

Appellee Mrs. Ella Holt is the surviving wife, and the remaining appellees are the surviving children, of James Holt, who on about April 30, 1904, fell into one of appellant's mining shafts, and as a result thereof was killed. They recovered a judgment in the sum of $4,500, from which this appeal has been prosecuted.

Substantially the only question presented to us is the sufficiency of the evidence to authorize the submission of the case to the jury. Appellees thus state the evidence upon which the judgment rests:

"The shaft of defendant's mine was divided into two compartments by a heavy wooden partition; each being about 6×8 feet in size. There were two landings above the surface, one at the ground and one above, called the tipple; the latter being 15 or 18 feet above the former. At the top landing or tipple, the coal, slate, etc., were dumped, and at the ground or lower landing the water was dumped. The mouth of the shaft at the ground landing was fenced on three sides; the side where the water cars were taken off being open, and the fence being of pickets 1 by 4 in size and about 4 feet high. There were large pillars around the mouth of the shaft supporting the tipple, etc., above; also, guides at the sides of the shaft for holding the cage in position. The cages were 4-10 by 6-1, and consisted of a floor and top, the latter made of a solid flat sheet of iron, the floor and top being connected by iron rods at the four corners of the cage. And the roof is a little smaller than the floor, is flat, and is about 6½ feet from the floor. Witnesses Poole and Warren estimated that the roof was 7 or 8 feet above the floor. There was nothing visible about the cage when standing at the landing except the floor and the top, or bonnet. At the ground landing there was a flat sheet, made of iron, some 12×15 feet or more in dimensions, on which was a track corresponding to the track on the cage. According to the witness Warren, the box of the water car was about 6 feet long and 3 feet deep, and the cars about 3½ or 4 feet high, were built of 2-inch stuff and were heavy, especially when wet and soggy. Witness Brookline testified that the trucks of the cars were 12 inches in diameter, and that the cars were 22 inches deep, making a total height of 28 inches. Witness Poole testified that he had made some of the cars, and that they were about 5 feet long and 24 or 25 inches deep and about 3 feet from the ground, and weighed 400 or 500 pounds. Witness Warren testified that it was his understanding that the boss had assigned to Holt the duty of emptying the water cars on the day he was killed. It was some time in the afternoon when he fell into the shaft. He had no regular line of duty, but did whatever was assigned to him to do. Brookline testified that Holt's duties at the time of his death were to take off the water and slate cars and dump them. The slate cars were dumped at the upper landing or tipple. Witness Geyer testified that he was the father-in-law of Holt, that Holt had been at work at appelant's mine more than a year, and that he had never seen him pulling off water cars at any time during that period.

"At the time Holt was killed, there were no bars or gates guarding the entrance to the mouth of the shaft. Witness Poole testified, among other things, as follows: `Some two or three months before Holt was killed, I had a conversation with Mr. Whittsell, the superintendent, about the matter of putting up some protection there. We were working seven days in the week then, and I asked him one Sunday morning if he could not provide some way to get gates there at the opening where the cars were handled, for the protection of the people who worked about the mouth of the shaft. He told me that after we got to the coal he would fix it so that nothing would fall in. We were then within eight or ten feet of the coal. At the time of Holt's death, if there was any protection or gate there to keep anything from going into the shaft, I don't know it. There was a protection put up there after Holt fell in. I do not remember how long after Holt's death, but it was only a few days.' Witness Geyer testified that between Monday and Friday following Holt's death a bar was placed at the entrance of the shaft. Witness Walter Warren, weighing clerk for appellant at the time, testified that there were bars at the entrance of the shaft to prevent the cars from running back into the...