Northern Coal & Coke Co. v. Allera
| Decision Date | 06 July 1909 |
| Citation | 46 Colo. 224,104 P. 197 |
| Parties | NORTHERN COAL & COKE CO. v. ALLERA. |
| Court | Colorado Supreme Court |
Rehearing Denied Oct. 4, 1909.
Appeal from District Court, Boulder County; James E. Garrigues Judge.
Action by Domenica Allera against the Northern Coal & Coke Company for the wrongful killing of her husband. Judgment for plaintiff for $3,250, and defendant appeals. Affirmed.
Julian G. Dickinson, for appellant.
L. J Stark, Geo. S. Redd, and Geo. Stidger, for appellee.
The plaintiff's husband, a miner, was working for defendant company in its coal mine. He and several other workmen were directed by the shift boss to go into a room or chamber of the mine from which the coal had been taken and shoot down a stump or pillar of coal that was still standing there as a support of the roof, and afterwards to remove the débris and clear out the entry or passageway which led to the chamber. While doing this work, as the complaint states plaintiff's husband was killed by a rock which fell upon him from the roof of this passageway while he was engaged in an inspection to ascertain the result of the shot, which inspection constituted a necessary part of the work in hand. The verdict of the jury awarded plaintiff damages, and from the judgment thereon defendant appeals.
As is usual in such cases, the evidence was not in every respect entirely harmonious. If it were necessary, we might not experience much difficulty in reaching the conclusion that as to the essential and important facts the conflict is not serious. There is no dispute about the orders which were given to the deceased, or the purpose of the work in which he was to participate. The object in shooting down this stump was to remove the support, and thus permit the roof of the chamber to cave in preparatory to abandoning that part of the mine, as the coal had been worked out. In pursuance of the order, the workmen entered into the chamber through an entry or passageway which led thereto from the main shaft. Plaintiff's husband placed a shot in the stump and fired it. The evidence is that the report was not loud, but muffled and indistinct, and the workmen were in doubt whether the shot produced the desired result. From the place of safety in the entryway, to which they repaired to do the other work after the shot was discharged, deceased returned to the vicinity of the stump to see if the shot was effective. The smoke was so thick that he was unable to see, and he returned to the entryway and continued at the other work along with his fellows. After working there for a few minutes, he started the second time towards the stump for another inspection; the testimony being that it was expected of the men thus engaged when they quit work to make report to the shift boss or foreman of the result of their efforts. The timbers in the worked-out chamber were then cracking, and there was evidence of some motion in the roof, but it had not yet caved. Either while deceased was going toward the chamber or returning therefrom the second time a rock fell upon him which caused the injury complained of. There is some controversy, at least defendant so contends, as to the exact place in which the rock fell; plaintiff asserting that it was in the passageway, defendant saying that it was in an abandoned portion of the mine near the place where the stump or pillar had been shot.
Defendant's contentions may thus be stated: That the case as made by the complaint was not established by the proof, in this: whereas the complaint alleges that the injury was received in the passageway leading to the chamber, the evidence is that it occurred in another and different place in the mine which defendant was under no obligation to keep in a reasonably safe condition. That deceased was injured while he was through curiosity or otherwise visiting or inspecting a place in the mine which was inherently and to his own knowledge dangerous, and where he was not directed to go, and in which he was not required to be in the performance of the work in question. That the falling of the rock which caused the injury was one of the ordinary and usual risks which deceased assumed in doing work in a mine of this character. That he equally with defendant, was aware of the dangerous character of the work and the unsafe place in which it must be done, and by his own negligence in...
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