Murray v. Swanwood Coal Co.
| Decision Date | 12 December 1912 |
| Citation | 138 N.W. 887,159 Iowa 1 |
| Parties | H. A. MURRAY, Appellant, v. SWANWOOD COAL COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. WM. MCHENRY, Judge.
ACTION at law to recover damages for personal injury. There was a directed verdict and judgment for the defendant, and plaintiff appeals.
Reversed.
S. B Allen, for appellant.
Guernsey Parker & Miller, for appellee.
The plaintiff was employed as a mule driver in the defendant's coal mine. He was a driver of experience and had been at work in this mine for several weeks. On the day in question he was caught and crushed between the top of the load on his car and the cross timbers supporting the roof of the entry at that point. He charges such injuries to the negligence of the company in that, first, reasonable care on the part of the company required it to so construct and maintain the entry as to afford a passage of at least five feet in height to enable the driver to safely pass thereunder with his mule and car, but that said roof, at the point where this injury occurred, was constructed or maintained at a height of but four feet; and, second, that due and reasonable care as aforesaid required that the company make such entry of sufficient width to afford room between a moving car and the rib of the entry for the escape of the driver in case it became necessary for him to jump from the car, but said entry, at the point in question, was so narrow that the driver could not escape from the car without being crushed against the rib. He avers that at the time of his injury he was driving his mule with a loaded car through the entry which was without light of any kind, except such as was afforded by the miner's lamp or candle attached to his cap; that, in accordance with the custom and his duty as driver, he was standing with one foot on the bumper of the car, and the other on the tail chain, one hand resting on the top of the car, the other on the rump of the mule, and his body bending low between the mule and the car to avoid collision with the roof timbers, when the mule began to kick, and, as plaintiff lifted himself up to avoid injury from the vicious animal, his head came into contact with the low place in the roof, forcing him back on the top of the loaded car, thus wedging him between the load and the roof, whereby he was severely injured. Upon this pleaded state of facts, and alleging that he did not contribute to his injury by his own negligence, he demands a recovery of damages. The defendant admits that plaintiff was injured in its mine, but denies all allegations of negligence on its part. It alleges further that plaintiff was guilty of contributory negligence, and that he was fully aware of the conditions of which he complains, and assumed the risk of remaining in such employment.
The plaintiff's testimony fairly tends to show truth of his allegations as to the condition of the roof of the entry and the truth of his version of the circumstances immediately attending the accident. As to a material part of his testimony, he is corroborated by the testimony of others. No testimony was offered on the part of the defendant. The motion to direct a verdict was based on grounds as follows: First. The evidence shows no negligence on the part of the defendant. Second. Plaintiff does not show himself free from contributory negligence. Third. It conclusively appears that plaintiff assumed the risk of such injury. The trial court in sustaining the motion expressed the view: First, that, if it was negligence on the part of the defendant to maintain the entry in the alleged defective condition, "it was negligence for the plaintiff to work in that condition;" and, second, that as plaintiff had worked on that entry for a matter of five weeks passing daily and frequently under the alleged defective roof, he is bound, as a matter of law, to know its condition. The foregoing statement of the record is sufficient for the consideration of the points brought to our attention by the briefs of counsel.
I. Was there evidence to go to the jury upon the question of defendant's negligence? Of this we think there can be no reasonable doubt. When defendant employed plaintiff to work as a mule driver in the entry of its mine, it assumed the duty of furnishing him a reasonably safe place to do that work. In entering such employment, plaintiff could rightfully assume and rely upon the performance of that duty by the employer. He had the right to assume that the entry in which he was directed to work was so constructed that, in driving through it in the exercise of reasonable care on his own part, he would not be brought into collision with the timbering of either the roof or rib of such entry. If the witnesses in the case are to be believed, and their credibility was for the jury, while as a rule the distance from the car rail to the roof of the entry was five feet, and that such was the usual and customary height of entries in coal mines, there were, at the place of the accident, two low hanging timbers suspended at not to exceed four feet from the rail. Some of the witnesses make it less. Whether such a construction was negligent appears to us a fair question for the jury. When we stop to consider that under the roof of the entry, even when built to the full height of five feet, there must pass and repass mules drawing cars standing thirty-four inches in height above the rail, carrying loads rising six inches or more above the car, and bearing drivers crouched between car and mule, the whole structure with car, load, mule, and driver enveloped in thick darkness, save such illumination as may be given by the light in the driver's cap, it is clear that even under otherwise most favorable conditions the danger of collision between the driver's head and the roof above is, to say the least, never small. But when in such an entry, either by reason of a defect in construction or by reason of lack of repair, one or more of the cross timbers are permitted to drop a foot or more below the prevailing height of such passageway, it is difficult to imagine a more deadly peril for the driver who must use it. Counsel's answer to this is that the height of a mine entry cannot be controlled by custom or arbitrary rule, but the dimensions thereof must be governed by the natural conditions of rock and soil which are penetrated. Such answer is true only in part. In the first place, there is here no evidence whatever of any necessity for the condition of which plaintiff complains and his testimony tends to show did exist. In the next place, it is not easy to conceive of any conditions to justify the hanging of one or two individual timbers below the general height of the roof on either side thereof, and if such conditions do exist, thereby creating unusual or special danger for the driver, the employer cannot avoid the charge of negligence except by showing that the injured employee had been warned of the danger or knew, or ought to have known, of its existence. We are satisfied, therefore, that, upon the question of defendant's negligence, plaintiff made a case for the jury. Quite in point in this branch of the case, see Ek v. Fuel Co., 157 Iowa 433, 138 N.W. 547, decided by this court at the November period of the present term.
II. But it is said plaintiff was himself negligent, and such it appears was the view of the court below. The statement in the ruling that, if it was negligent for the defendant to construct or maintain the entry as complained of, it was equally negligent for the plaintiff to work therein was probably not intended as the enunciation of a general rule for, if it were such, then in no case could an employer ever be held liable for negligence in furnishing a proper place to work. We take it for granted that the court intended to hold that, if the defect complained of by the plaintiff existed, it must have been so patent to him, and was of such imminent character, that it must be conclusively held that no prudent man would take or remain in such employment, and he was therefore guilty of contributory negligence. We are not able to satisfy ourselves with that view of the record. It was no part of plaintiff's duty to care for the roof of the entry. That was the duty of the master. The defect complained of was not so manifest that plaintiff must have seen it, or that he must be guilty of negligence, as a matter of law, in not seeing it. It was not open and obvious. It was enveloped in impenetrable darkness save when a miner or driver passed with his lamp. Plaintiff, bending between his car and mule, could hardly be expected, certainly not as a matter of law, to be twisting his...
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