Patterson Coal Co. v. Poe

• Decision Date: 21 January 1907
• Citation: 99 S.W. 538,81 Ark. 343
• Parties: PATTERSON COAL COMPANY v. POE
• Court: Arkansas Supreme Court

99 S.W. 538

81 Ark. 343

PATTERSON COAL COMPANY v. POE

Supreme Court of Arkansas

January 21, 1907

Appeal from Sebastian Circuit Court; Styles T. Rowe, Judge reversed.

Reversed and remanded.

Joseph M. Spradling and Geo. S. Evans, for appellant; Geo. W. Dodd of counsel.

The verdict is not supported by the evidence. The rule is settled that when one enters the service of another he takes upon himself the ordinary risks of the employment in which he engages. If the servant, having sufficient intelligence and knowledge to enable him to see and appreciate the dangers to which he will be exposed, knowingly assents to occupy a place set apart for him by the master, and does so, he thereby assumes the risks incident thereto, and dispenses with the obligation of the master to furnish him with a better place. 68 Ark. 316; 56 Ark. 237; 57 Ark. 76; 48 Ark. 346; 53 Ark 117; 39 Ark. 17; 20 Am. & Eng. Enc. of L. (2 Ed.), 124; id. pp. 128, 130, 131.

S. F. Lawrence and John W. Goolsby, for appellee.

The owner, agent or operator of a mine is required to keep a sufficient amount of timbers to be used by the miners to prevent the mine from caving, and also to deliver them at the place where the cars are delivered. Kirby's Digest, § 5352.

While it is true that where a person engages to work for another he assumes all the risks ordinarily incident to his employment, it is equally true that he does not assume the risk of any injury caused by the negligence of his employer.

Joseph M. Spradling and Geo. S. Evans, for appellant in reply; Geo. W. Dodd, of counsel.

The negligence of the master must be the proximate cause of the injury before the servant can recover on the strength of the master's negligence. 20 Am. & Eng. Enc. of L. (2 Ed.), 55; 8 id, 561; 56 Ark. 279.

OPINION

MCCULLOCH, J.

Appellee was a coal miner, employed by appellant in the coal mine operated by the latter in Sebastian County, and instituted this action to recover damages sustained by reason of appellant's negligence while at work in the mine. He was at work in one of the rooms of the mine when the roof fell in on him, and he was severely injured by a falling rock. Negligence of appellant is alleged in failing to furnish necessary timbers with which to prop the roof. The jury returned a verdict in favor of plaintiff, and the defendant appealed.

The defendant denied the allegations of negligence, and pleaded that plaintiff's injury resulted from his own negligent act, and also that the injury resulted from one of the ordinary risks and dangers incident to his employment which he assumed.

The plaintiff was a coal miner of long experience, and was well acquainted with his duties and the danger incident to the work in which he was engaged. The details of his injury, as related by himself on the witness stand, are as follows: He was at work in the mine digging coal when he was directed by the pit boss to go to work in another room, the room in which he subsequently received the injury. He went to the new room assigned to him and first examined it, sounding the top with his pick, and, finding only one or two props, he returned to the entry and told the pit boss to bring some props for his use. The latter promised but failed to do so. He worked in the room a portion of that day. This was on Monday, and, as operations in the mine were suspended for a week, he did not resume work until the following Monday. On that day he returned to his work in the room, and again called for props, which were again promised, but none were furnished. He said that the room was just as he left it except that the three shots he had put in on the former day had been fired. He went to work digging down the coal, and, after having worked from about seven o'clock in the morning until some time during the afternoon, when he was on his knees "taking down draw slate" a rock fell down on him from the top and inflicted the injury.

The seam of coal at this place was about four feet thick, and between it and the solid rock above there is a thin stratum of slate, called "draw slate," which varied in thickness. The draw slate usually falls down of its own weight when the coal is removed, and in case it does not fall the miner picks it down and removes it before putting in props to hold the roof of solid rock.

Plaintiff states that if he had had the props he could and would have put them in as he took down the draw slate, and could thereby have prevented the falling in of the roof. It is therefore clear that the plaintiff's injury resulted from the failure to prop the roof so as to prevent the same from caving in.

A statute of this State provides that "the owner, agent or operator of any mine shall keep a sufficient amount of timber when required to be used as props, so that the workmen can at all times be able to secure the said workings from caving in, and it shall be the duty of the owner, agent or operator to send down all props when required and deliver said props to the place where the cars are delivered." Kirby's Digest, § 5352.

It was the duty of the miner to use the props so as to make safe the room where he worked. The plaintiff was an experienced miner and knew the danger of rock falling from an unsupported roof, and was fully advised of his duty in making the place of his work safe. The fact that he repeatedly called for props shows that he fully realized the necessity for their use and the danger of proceeding with his work without propping the roof. He says he observed that it was insufficiently propped, and he would have put in props as ...