Owl Creek Coal Co. v. Goleb

• Decision Date: 05 January 1914
• Docket Number: 3937.
• Citation: 210 F. 209
• Parties: OWL CREEK COAL CO. v. GOLEB.
• Court: U.S. Court of Appeals — Eighth Circuit

210 F. 209

OWL CREEK COAL CO. v. GOLEB.

No. 3937.

United States Court of Appeals, Eighth Circuit.

January 5, 1914

Where it clearly appears that evidence excluded was competent and of such materiality that its exclusion might have caused injury to the party offering it, reversible error appears.

Plaintiff in error, hereinafter called defendant, is a South Dakota corporation engaged in operating a coal mine at Gebo, in the state of Wyoming. Defendant in error, hereinafter referred to as plaintiff, was an employe of said defendant, and brought suit to recover damages for personal injuries sustained while operating a machine undercutting coal in defendant's mine. The injury occurred on the morning of January 4, 1912. The plaintiff was what is known as a machine runner, working by the day. He was 28 years old, and had had seven years' experience in coal mining. During the evening of January 3d the plaintiff with his machine undercut a wall of coal at a certain manhole or crosscut in the mine, completing this work at midnight. After him came employes known as shooters, who drilled holes at various points in the ledge thus undercut which holes were charged with explosives and the same discharged, bringing down many tons of coal upon the floor and against the wall of the mine at the point referred to. The next morning at 7 o'clock plaintiff returned to the mine. He found the bottom of the slope where he had worked the night before full of unloaded coal. Half an hour later Kirby, the pit boss, appeared and told plaintiff that he desired him that day to continue cutting at the manhole. Plaintiff replied that he could not cut there because the place was full of coal. He states that after inspection the pit boss told him 'to get two loaders and tell them to go and make room for one board, and also my helper should help and as soon 'as they make room for your board, then you go and start to cut.' ' The board referred to is one upon which the cutting machine rests when in operation. About 16 or 17 car loads of coal were lying displaced upon the floor and against the walls of the slope at this point. Plaintiff states that he himself took no part in clearing the place of coal; that in about an hour he and his helper adjusted the board, and the pit boss, Kirby, having returned, assisted them to place the machine upon it and directed plaintiff to begin cutting; that in obedience to this direction he started his machine, which delivers a blow of between 700 and 800 pounds. About 15 minutes afterwards a mass of coal fell upon him, resulting in the injuries complained of.

The pit boss, Kirby, states that plaintiff was working by the day and was required to perform about the mine any work that the foreman asked him to do, which included shoveling, drilling holes, picking down coal that had been loosened by blasts, or anything of that kind. On the morning in question he testifies that he told plaintiff 'to send his helper down to the bottom of the slope and for him to help the shooter shoot down some coal and get this place ready to cut. * * * Q. What was it you told him? A. I told him to help the shooter and for them to get that place ready. Q. Who was the helper you referred to? A. Drago Yonich, a Montenegrin. Q. Who were the loaders you spoke of? A. Nick Siemes and Tommy Siemes. Q. What followed that conversation? A. I left. Q. Where did you go? A. I went to another part of the mine. Q. Do you know whether or not he carried out your instructions? A. I believe he did, started to. Q. Did you see him again later that morning? A. After he was hurt I did. ' He testifies further that at the time the place was lying full of coal; that coal was lying against the face as if it had just been shot down, and was also hanging on the face of the wall. It had been broken up, but was largely in place and extended pretty well up toward the top. In the ordinary course of mining it was necessary to take a pick, pull down the loose coal, and load it out.

The petition charged defendant with negligently permitting the place where plaintiff was working to become unsafe and dangerous. In other words, the cause of action is based upon the alleged failure of the master to exercise reasonable care to provide a reasonably safe place for work. The answer interposed a general denial and then set out four specific affirmative defenses. These are quoted in full:

'Defendant denies that it was negligent as alleged in the amended petition or at all, and alleges that each and all of the conditions, risks, and dangers in and about defendant's mine, and in and about the place where plaintiff was at and before the time of said alleged accident and injury to plaintiff, if any, including the conditions, risks, and danger resulting in said accident and injury, were open and obvious and readily observable to the plaintiff; that each and all of the said conditions, risks, and dangers were known to the plaintiff or should have been known to him in the exercise of ordinary care, and that, notwithstanding said knowledge and means of knowledge on the part of plaintiff as aforesaid, the plaintiff continued in said employment, and went into said place prior to said accident and remained in said place until the happening of said accident and injury; that each and all of said conditions, risks, and dangers, except in so far as they were caused by the negligence of the plaintiff himself, were incident to the work plaintiff was employed to do; and that the plaintiff assumed each and all of said conditions, risks, and dangers.'

'And for a second, further, and affirmative defense to said amended petition defendant alleges: Defendant denies that it was negligent as alleged in the amended petition or at all, and alleges that the accident and injury to the plaintiff were proximately caused by negligence, omissions, and want of care and caution on the part of the plaintiff himself.'

'And for a third, further, and affirmative defense to said amended petition defendant alleges: Defendant denies that it was negligent as alleged in the amended petition or at all, and alleges that the accident and injury to the plaintiff were contributed to by negligence, omissions, and want of care and caution on the part of the plaintiff himself.'

'And for a fourth, further, and affirmative defense to said amended petition defendant alleges: Defendant denies that it was negligent as alleged in said amended petition or at all, and alleges that, if the accident and injury to the plaintiff alleged therein were caused by any negligence other than the negligence of plaintiff himself, such negligence was negligence on the part of a fellow servant or fellow servants of the plaintiff, for which the defendant is not in law responsible in damages to the plaintiff.'

At the trial defendant offered testimony in support of these defenses to the effect that it was a part of the duty of the plaintiff, as a machine runner, to look after the roof and walls of the place at which his machine was to be operated, and particularly so soon after blasting had taken place; that it was a part of plaintiff's business, in conjunction with other employes, to clean the place, which included removing loose coal and picking and pulling down that which had been shattered and was hanging and threatening to fall; that this duty not only inhered in the contract of employment, and the directions given in the instant case, but was also a well-known custom and practice in mining; that plaintiff knew the condition of the place, since he himself had taken part the night before in preparing for the blast; that the situation was obvious to any one making even a casual inspection; that other employes had warned plaintiff of the dangerous condition, advising him to test the walls carefully with his pick; that plaintiff, after the accident, admitted having done so on this occasion; and that he did so in many instances. There was also testimony to the effect that such work was the obvious duty of miners and machine runners, particularly when the place bore unmistakable evidences of being unsafe. Much testimony of this nature, which need not be considered in detail, was tendered; practically all of it was ruled out by the trial judge, who proceeded upon the theory that the obligation of the defendant to provide a reasonably safe place in which plaintiff might work excluded the defenses of contributory negligence and assumption of risk; also that the affirmative defenses were not sufficiently pleaded, even though such defenses might otherwise be entertained. Defendant's offer to amend its pleadings was refused, and its defense was limited to that tendered by its general denial.

At the close of the testimony defendant requested a number of instructions, which, in general, submitted to the consideration of the jury the questions raised by the affirmative defenses pleaded and the offers of evidence to which reference has been made. These requests were likewise refused. The charge of the court was very brief. All that conditioned the right of recovery is embraced within the following language: 'In cases like this it is the duty of the employer, or master, to use ordinary care to furnish reasonably safe machinery and instrumentalities with which his servants may perform their work and a reasonably safe place in which they may render their service, and this duty may not be so delegated by the employer, or master, that he or it, may escape liability for its breach. So in this case it was the duty of the defendant company to use ordinary care to provide a reasonably safe working place within which the plaintiff might operate his machine. The limit of the defendant's duty in this respect is to exercise ordinary care, having regard for the hazards of the service, to...