Pocahontas Consol. Collieries Co., Inc. v. Johnson

• Decision Date: 13 July 1917
• Docket Number: 1508.
• Citation: 244 F. 368
• Parties: POCAHONTAS CONSOL. COLLIERIES CO., Inc., v. JOHNSON.
• Court: U.S. Court of Appeals — Fourth Circuit

244 F. 368

POCAHONTAS CONSOL. COLLIERIES CO., Inc., v. JOHNSON.

No. 1508.

United States Court of Appeals, Fourth Circuit.

July 13, 1917

E. M Fulton, of Wise, Va., and S. C. Graham, of Tazewell, Va (Graham & Hawthorne, of Tazewell, Va., and Fulton & Vicars of Wise, Va., on the brief), for plaintiff in error.

William G. Werth, of Norton, Va., and William H. Werth, of Tazewell Va., for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

WOODS Circuit Judge.

This action is for damages caused by the death of J. D. Ross, an employe who was killed in defendant's coal mine. There were two main ways into the mine, the drift mouth and the entrance at the tipple. These intersected at a point about 800 feet from the drift mouth and about 300 feet from the tipple entrance. From the tipple to a point about 800 feet inside, the main entry was double-tracked, the track on the right going into the mine being used for empty cars and that on the left for loaded cars. The cars were moved by an electric motor within the mine, and by a chain hoist or 'creeper' from the foot of the incline to the tipple. In the movement of these loaded cars from within it was necessary to uncouple the electric motor from the cars at a point about 300 feet from the tipple. The motor then crossed over a switch to the track for empty cars, ran back into the mine to the point where the empty and loaded car tracks joined, then forward on the loaded car track, coupled to the cars from the rear, and pushed them forward to the foot of the incline, where they were connected to the creeper, which carried them to the tipple. After being unloaded the cars then drifted back into the mine on the track for unloaded cars.

Ross, a mine engineer, together with two helpers, Herrold and Murray, entered the drift mouth and walked in as far as the intersection of the two entries. Upon reaching the intersection, which was only a few feet from the cross-over which the motor took to change from the front to the rear of the cars, he found the motor was then making the change so as to run down and get behind the loaded cars and push them to the creeper. Ross started to follow the motor then backing down the track which was used for empty cars, when the motorman told him not to follow but to wait until a train of empties came by going into the mine. Murray asked the motorman whether the empties were to be pulled or pushed into the mine, and the motorman replied that they were to be pushed in. Ross, Herrold, and Murray stopped and stepped back on the track for loaded cars and stood there waiting for the empty cars to pass. The reason for not going in on the motor pushing cars into the mine seems to have been that it was dangerous to do so, while it was comparatively safe to go in on a motor pulling the cars. While a train of empties was passing them, making a loud rumbling noise, the train of loaded cars, to which the motor had in the meantime coupled in the rear, struck and injured Herrold and ran over and killed Ross. The train of loaded cars had no light on the front end, the motor with a light being at the rear. The nearest light to the scene of the accident was a 32 candle-power electric lamp attached to a post about 30 feet away. Each of the men had a cap with a carbide light used by mining engineers.

The court below entered judgment upon a verdict found in favor of the plaintiff for $5,083 and costs. The charge of negligence, the basis of the verdict, was the failure of defendant to have a light on the front of the train of cars, the allegation being that the light on the car would have warned Ross and his companions of its approach.

Among other precautions for the safety of miners, the Virginia statute, under penalty for disobedience, requires the following:

'On all haulways where hauling is done by machinery of any kind, the mine foreman shall provide a proper system of signals and for the carrying of a conspicuous light on the front, and a light or flag on the rear, of every trip or train of cars when in motion, provided that this shall not apply to trips being hauled by gathering motors or mule teams when operating on other than main headings, and when hoisting or lowering men occur before daylight in the morning or at evenings after darkness. ' Virginia Mining Act, Sec. 13 (Pollard's Supplement 1916, p. 298).

The accident did not occur while cars were being hauled by gathering motors or mule teams at a place other than a main heading, and therefore the defendant's contention that there was no duty to provide a light on the front of the moving cars is without merit. No place in a mine would fall more clearly within the letter of the statute and the protection it was designed to afford than that where the accident occurred. Without artificial light, the place was absolutely dark and there was much movement of cars.

Under the circumstances stated, evidently the breach of the imperative statutory duty to give warning of the approach of the cars by a light in front was such a probable, proximate cause of the accident as to afford sufficient support for the judgment, unless there was such assumption of risk or contributory negligence by Ross as to defeat the action. Minneapolis, etc., R. Co. v. Gotschall, 244 U.S. 66, 37 Sup.Ct. 598, 61 L.Ed. 995 (May 21, 1917). Any one of a class for whose special benefit a penal statute is enacted has a right of action for injuries resulting to him from its violation. Texas, etc., R. Co. v. Rigsby, 241 U.S. 33, 36 Sup.Ct. 482, 60 L.Ed. 874.

There is no doubt that Ross knew that the defendant's method of work was to push the loaded cars to the tipple without a light in front; and the court was requested, but refused, to charge that if he had that knowledge he assumed all risk incident to the absence of the light. Thus arises the question whether an employe assumes the risk of known violation by the employer of a penal statute requiring a specific appliance deemed by the Legislature necessary for the safety of employes. Our conviction, supported by the great and growing current of authority, is clear that he does not, though the decisions are in hopeless conflict on the subject. The arguments in favor of the opposing views are stated by Judge Taft in Narramore v. Cleveland, etc., R. Co., 96 F. 298, 37 C.C.A. 499, 48 L.R.A. 68, and by Judge Carland in Denver, etc., R. Co. v. Norgate, 141 F. 247, 72 C.C.A. 365, 6 L.R.A.(N.S.) 981, 5 Ann.Cas. 448. Neither the Supreme Court of the United States nor the Supreme Court of Appeals of Virginia have directly passed on the question. The cases are collated in 5 Labatt on Master and Servant, 5061, 6 L.R.A. (N.S.) 981, 26 Cyc. 1181, and annotations of 1914-1917, and other text-books and annotated cases.

Assumption of the risk of a business inherently dangerous, but conducted with due care, is a doctrine evidently fair and just. But the doctrine of assumption of risk by the servant of the continued negligence of the master, because such negligence was known to the servant, is a hard one and all statutes looking to relief from it should be liberally construed against it. Penal statutes requiring safeguards for laborers rest on the care of the state for the employe for the sake of himself, of the persons dependent on him, and of the community. The primary and insistent necessity for their enactment is that men will work in mines and other dangerous places at the constant risk of death or injury whether such precautions are taken for their safety or not. The Legislature assumed that men will work in the mines without the protection of the required lights; otherwise the enactment would not have been necessary. In this case it is probable there was not a man less in the mine because of defendant's failure to provide the safeguard of a light on the front of moving cars. Hence the precautions which the Legislature regards obviously necessary to safety it places out of the domain of waiver by the employe or of contract, either express or implied, between the parties, and requires such precautions as a matter of public policy, under the sanction of penalties inflicted for failure to provide them.

The proposition that the violation by the master of a penal statute intended for the protection of the servant as a matter of public policy is nothing more than ordinary negligence, and stands on the same legal footing as common-law negligence, seems to us obviously and fundamentally unsound.

Assumption of risk arises either out of the contract of employment, as an incident of it, or out of the status or relation voluntarily assumed and continued by the employe towards the instrumentalities of the employer. In the one view the statute, with its requirements and penalties, attaches to the contract as a part of it; and in the other view it becomes an element of the status or relation. Assumption of risk is an affirmative defense. Baltimore, etc., R. Co. v. Taylor, 186 F. 828, 109 C.C.A. 172. In this case its two elements would be violation of a penal statute by the employer, and waiver or acceptance of the violation without objection by the employe. Hence, to make out its defense of assumption of risk the defendant must assert, as one of its elements, its own violation of a penal statute. No one can assert an affirmative claim of any kind when one of its essential elements is his own violation of a criminal statute.

From this the conclusion follows that it would have been tautological for the statute to abolish in express language the defense of assumption of risk as to the absence of lights, since in making their absence criminal it did that and more. The doctrine has been applied to usury statutes and many others. A penal statute against usury makes waiver of its provisions...