Plaintiff v. Coal
| Decision Date | 14 January 1914 |
| Court | West Virginia Supreme Court |
| Parties | Humphreys v. Raleigh Coal & Coke Co. |
1. Master and Servant Duty of Mine Operator Safety of Employe.
The mine foreman statute of this state does not absolve the mine owner or operator from his common law duty to exercise reasonable care to provide reasonably safe machinery, tools and appliances for use in the mine and make the mine a reasonably safe place for work, except in so far as the duty is devolved upon the mine foreman, nor from liability for injury resulting to a servant in the mine from his failure to make such provision, or his provision of defective or unsafe appliances, or his failure of duty as to the safety of the mine as a place of work in those instances in which such duty is not cast upon the mine foreman. (p. 498).
2. Same Injury to Servant Defective Instrumentalities.
An uninsulated wire carrying pump in the air course, attended by a workman called a pump runner, is a dangerous appliance or instrumentality, and renders the place in which it is a dangerous place of work, and, for injury inflicted by it upon a servant called into the break-through to assist in moving the pump, without knowledge of its condition, the mine owner is liable (p. 499).
3. Electricity Personal Injuries Liability,
A person using the silent mysterious force called electricity, whose presence in deadly quantity cannot ordinarily be detected by any of the five senses without danger, in a place to which he knows others may resort for any reason, such as business, pleasure or curiosity, and in such manner as exposes them to danger of contact with it by accident or inadvertence, is bound to take precaution for their safety by insulation of the instrument used in its application or some other adequate means. (p. 500).
4. Master and Servant Assumption of Bislc.
Ordinarily a servant assumes the risk of injury from the negligence of his fellow servant, but not from the negligence of the fellow servant augmented by that of the master. The negligence of the master contributing to that of the fellow servant or concurring with it relieves the injured servant from the operation of the fellow servantcy rule. (p. 501).
Error to Circuit Court, Raleigh County.
Action by C. B. Humphreys against the Raleigh Coal & Coke Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
File & File, for plaintiff in error.
T. N. Read and A. A. Lilly, for defendant in error.
On this writ of error to a judgment for $5,000.00 for injury to a hand of a track-layer in a coal mine by reason of contact with an uninsulated wire used as a feed wire to an electric pump operated in an unfrequented air course, the principal question is whether the duty as to the safety of the wire, as an appliance or instrumentality, rested upon the mine foreman or the operator. If it was such as the law devolves upon the mine foreman, the negligence, if any, was that of a fellow servant, for which there can be no recovery from the employer; but, if it was not, the fellow servantcy rule does not apply and it becomes necessary to examine the action of the court upon the motions for relief from the verdict and the prayers for instructions refused and objections given, in the light of other legal principles.
The extensive mine in which the accident occurred, having several entries with parallel air courses between which breakthroughs were made, was operated by electric power, supplied from a power house on the outside. Electric motors propelled from trolley wires over-head were used for hauling the bank cars and the mining machines and pumps were supplied with electric power from the trolley wires. The wire causing the injury complained of had been used to operate a heavy pump, mounted on a truck, at a low place in the mine at which water collected and, if not removed, spread through the entries and into the working rooms. The truck was so constructed as to run on the ordinary mine tracks, a branch from one of which had been built through an old break-through at the low place mentioned, a distance of about 35 feet, into the air course, and the pump run off on it to that point. From the trolley wire in the entry, the feed wire was carried along the rib of the break-through, near the top, on wooden pins, to the pump. It was insulated at each end for a distance of five or six feet by a "jumper", to enable persons handling it to hook one end of it over the trolley wire and attach the other to the pump, without coming in contact with the current, but was wholly uninsulated and exposed except at each end.
On February 1, 1911, heavy rains having fallen in consequence of which considerable water had collected and the pump having ceased to work properly, the mine foreman whose competence is not questioned, decided to remove the pump for repairs and to prevent submergence thereof. Intending to draw it out with the motor and believing some repairs to the track would have to be made to enable him to do so, he summoned the plaintiff, a track layer whose usual place of work was in the main entry, and his assistant, "to help get the pump out and fix the track up there where the pump was". They responded. In the meantime, however, finding the water too deep to permit the use of the motor for the purpose and having unavailingly endeavored to connect the motor to the pump by a chain of empty cars, one or more of which was left on the track between the entry and the pump, the foreman adopted a new plan, removal by hand power, which seems to have been in process of execution when the plaintiff and his assistant arrived or very soon afterward. Johnson, the foreman, accompanied by four or five men, some of whom had been run in on the empty cars, while others had walked in on boards, was at the pump, and, deeming his force inadequate, sent the motor runner to the entry to call in the other two men, the plaintiff and his assistant, to aid in the work. Obeying this summons, the plaintiff started in and. when he came to the ear or train of cars, standing on the track, instead of passing around it on the boards, climbed over the top of it, and, on alighting or shortly after having alighted, slipped on a rail or some other object in the water, and, in falling or to prevent a fall, threw out his hand and caught the live wire, which had been detached from the pump but not from the trolley wire. As a result of the burn received from the contact, the last three fingers of plaintiff's right hand are badly crippled and the entire right arm has become practically useless.
Nothing in the statute imposing upon operators duty to employ mine foremen and exonerating them from liability for the consequences of the negligence of such employes acting within the scope of their statutory powers, absolves the employer from duty to equip the mine or plant with suitable machinery and appliances for the prosecution of the work. To the foreman, the statute commits the control and supervision of the inside workings or actual operation of the mine, including the use of machinery and appliances furnished by his employer. Much of this work is necessarily constructive in a sense, for the...
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