Owens v. Norwood-White Coal Co.
| Decision Date | 13 December 1919 |
| Docket Number | 32864 |
| Citation | 174 N.W. 851,188 Iowa 1092 |
| Parties | J. R. OWENS, Appellant, v. NORWOOD-WHITE COAL COMPANY, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 13, 1920.
Appeal from Polk District Court.--THOMAS J. GUTHRIE, Judge.
ACTION at law, to recover damages on account of personal injuries. At the conclusion of the evidence on the part of plaintiff the court sustained a motion by defendant for a directed verdict in its favor, and plaintiff appeals.
Reversed.
John L Gillespie, for appellant.
Miller, Parker, Riley & Stewart, C. Woodbridge, and E. D. Perry, for appellee.
The injury for which plaintiff seeks to recover damages was sustained August 5, 1908, and this suit was begun in April, 1909. The case has twice before been brought to this court upon appeal. See Owens v. Norwood-White Coal Co., 157 Iowa 389, 181 Iowa 948. It is, therefore, unnecessary for us to restate the issues. Concerning the facts, the following are not the subject of dispute. Plaintiff is a coal miner by occupation, and, on the day in question, was, and for some time had been, employed in the defendant's mine. In the course of such service, he was assisting the defendant's timberman in the unloading of timbers from a coal car in one of the entries of the mine, and, while he was so engaged, a large mass of slate fell upon him from the roof, or from the angle between the roof and the side of the entry, injuring him very severely. He was carried to his home, but within a few hours was taken to a hospital, where he remained about four days, when he was returned home. While at the hospital, he was visited by Mr. Woodbridge, defendant's attorney and claim agent, and the physician Dr. Cokenower, who treated him. On the day following his return home, he was again approached by the agent, soliciting a settlement of his claim, if any, for damages. This visit was repeated at least once, and perhaps twice, and the negotiations so begun ended in the execution by plaintiff of a written release of the defendant from all claims for damages on account of his injury, in consideration of which Woodbridge, acting for the defendant, paid plaintiff the sum of $ 50 in money; also the further amount of $ 16.60, to cover his expenses at the hospital; and the company also paid for the services of Dr. Cokenower. Plaintiff admitted giving the release, but pleads in avoidance that it was obtained from him by fraud and mistake.
As we have already indicated, the first trial resulted in a judgment for the plaintiff, and it was from this adjudication that the first appeal was taken. After an opinion affirming the judgment had been filed, a rehearing was granted, and a reversal was ordered because of errors in the charge of the trial court to the jury, and because of the view of a majority of the court that the evidence was insufficient to sustain the plaintiff's plea of fraud, in avoidance of the release which he had executed. As that view was decisive of the appeal, there was no discussion of the evidence relating to the alleged negligence of the defendant, except that a majority was "inclined to think" that no actionable negligence was shown, and "inclined to the opinion" that there had been an assumption of the risk; but neither proposition was adjudicated, and this is explained by the court, when it there designates the issue upon the release as the "controlling proposition in the case." It is also to be said that, while much of the testimony on these issues is a repetition of that which was given on the first trial, the record as a whole indicates that plaintiff's showing was, in several respects, materially strengthened on the second trial, and that there is nothing in the former opinion which prevents us from passing upon the merits of the case, as they are revealed by the evidence given upon the last hearing.
Following that decision, a procedendo issued from this court, and the plaintiff had the cause docketed for a new trial in the court below. The defendant objected to further trial, and moved the court for judgment in its favor on the record, on the ground that the issues had been determined and finally adjudicated by this court on the first appeal. The trial court adopted this view of the situation, refused to allow a new trial, and entered judgment against the plaintiff for costs. On appeal by the plaintiff to this court, the ruling was reversed (see Owens v. Norwood-White Coal Co., 181 Iowa 948, 165 N.W. 177), and the cause was again remanded for trial.
On the second trial, the plaintiff having introduced his evidence and rested, the defendant, without offering or introducing any testimony in its behalf, moved for a directed verdict in its favor. The grounds of such motion, though stated in 22 different forms or paragraphs, may be abridged as follows:
1. That the binding and conclusive character of the written release of defendant from liability precludes further inquiry into the merits of the case.
2. That, as a matter of law, there is no evidence to support a finding of negligence on the part of defendant.
3. That the negligence complained of was that of a fellow servant.
4. That the evidence shows conclusively that the plaintiff had assumed the risk.
The court sustained the motion, and directed a verdict for defendant, saying that, in its view, plaintiff had failed to show any actionable negligence; but that, in entering the ruling of record, it would be made to show the motion sustained on all its grounds, "so that all questions presented to the trial court may be raised and finally decided on all grounds."
It will readily be seen that, notwithstanding the multiplicity of the formal points made by appellee in support of the ruling on the motion, the disposition of this appeal must depend, for the most part at least, upon our answer to the two questions: First, Was the evidence of defendant's alleged negligence sufficient to take the case to the jury upon that issue? and, second, Was there evidence for consideration by the jury in support of plaintiff's plea in avoidance of the release executed by him? To these issues we now turn our attention.
I. Could the jury, under the evidence, have found defendant negligent, as charged, with reference to its maintenance and care of the entry where plaintiff was hurt? The accident occurred in an entry known in the record as "17 East." Plaintiff's regular employment was that of pump man in another part of the mine; but he had had considerable experience in other forms of mining work, and, on occasion, when his service at the pump would permit, he engaged in other labor, as he might be directed or requested. Entry 17 East had been driven to a point 60 feet beyond the place where plaintiff was injured, which was in front of Room No. 7, worked by a miner named Murray. It was the duty of the mine owner or operator to take care of the roofs of the entries, and this duty was performed by a timberman employed for that purpose. The timberman having Entry 17 East in charge was one Grange, who is a witness in this case. As the character of the roof was variable, it was not at all points protected by timbers, those portions in which the overlying rock was found to be of a kind not likely to break or fall being left without such protection; but daily inspections were made, or should have been made, of all exposed roofs, and, upon the appearance of any dangerous condition, timbers were put in, or the loosened rock taken down. In completing 17 East, a portion of the roof near Room No. 7 and a short distance on either side was left without support, on the theory that the rock was safe. On the day in question, the timberman Grange was proposing to timber a section of the roof of 17 East, some 30 or 40 feet to the east of Room 7, and asked plaintiff to assist him. Together they came into the entry, with a load of timbers on a coal car, and, stopping in front of Room 7, began to unload the car, when a large mass of slate fell upon the plaintiff, and caused the injury complained of.
Passing, for the present, the question of contributory negligence by plaintiff, let us inquire what, if anything, is shown from which the jury could find want of proper care on part of the company, with respect to the defect in the roof and the fall of the rock. As we have said, it is the conceded duty of the owner or operator of a mine to keep the entries in proper condition, and use reasonable care to see that the roof is protected, if protection is needed. The company was, of course, not an insurer, but it was bound to exercise reasonable care to maintain the entry as a reasonably safe way for those whose duties led them to use it. To be reasonable, the care to guard and protect must be fairly proportioned to the nature and extent of the perils to be apprehended. It is the universal testimony of miners that the danger of injury such as plaintiff sustained is both great and constant; that frequent inspection of entry roofs is necessary, for the protection of those using the passageways below; and that, whenever any portion of a rock roof becomes loose or threatening, it should be taken down, or the place should be timbered.
Grange admits that it was his duty to make these inspections every day, and says he did it. He further admits that his attention had been attracted to the overhanging rock which fell upon plaintiff. He says:
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