Owl Creek Coal Co. v. Goleb

• Decision Date: 01 May 1916
• Docket Number: 4321.
• Citation: 232 F. 445
• Parties: OWL CREEK COAL CO. v. GOLEB.
• Court: U.S. Court of Appeals — Eighth Circuit

232 F. 445

OWL CREEK COAL CO. v. GOLEB.

No. 4321.

United States Court of Appeals, Eighth Circuit.

May 1, 1916

William E. Hutton, of Denver, Colo. (Bruce B. McCay, of Denver Colo., on the brief), for plaintiff in error.

E. E Enterline, of Billings, Mont. (T. W. La Fleiche, of Sheridan Wyo., on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

HOOK Circuit Judge.

Goleb, the plaintiff, recovered a judgment for personal injuries caused by the neglect of the Coal Company, in whose service he was, to perform its duty in respect of a safe working place. A previous judgment was reversed. The details of the case will be found in the reported opinion. 127 C.C.A. 27, 210 F. 209. The plaintiff operated a machine for undercutting a vein of coal in defendant's mine, preparatory to the use of explosives to loosen or dislodge it. The vein of coal was 8 or 9 feet thick, and the roof, when cleaned of hanging coal and rock, was at least that distance above the floor of the entry or chamber. While engaged in working his machine near the breast or face of the vein, some coal which had not been removed from the roof after the preceding blast fell upon and seriously injured him.

The principal complaint is that the trial court denied defendant's motion for a directed verdict at the close of the evidence. It cannot reasonably be said that there was not substantial evidence supporting the plaintiff's side of every issue of fact involved in the case; that is to say, the questions of the negligence of the defendant, the plaintiff's assumption of the risk, and his contributory negligence-- whether the danger was in the face of the coal at and into which the plaintiff was working or in the roof above him, whether it was his or defendant's duty to look to the condition of the roof under which he worked, whether he knew of the danger in the roof, either by his own observation or by warning from others, and whether the danger was so patent as to be readily observable by him under which he worked, being substantial evidence in support of the verdict and judgment, the fact that the weight of all the evidence was strongly against the plaintiff does not authorize us to substitute our opinion for that of the trial court and jury. That is too well settled to dwell upon.

There was no error in refusing the requests for instructions. One request was that the workmen engaged in clearing up the place after the...