Poli v. Numa Block Coal Co.

• Decision Date: 26 October 1910
• Citation: 127 N.W. 1105,149 Iowa 104
• Parties: POLI v. NUMA BLOCK COAL CO.
• Court: Iowa Supreme Court

149 Iowa 104

127 N.W. 1105

POLI

v.NUMA BLOCK COAL CO.

Supreme Court of Iowa.

Oct. 26, 1910.

Appeal from District Court, Wayne County; H. K. Evans, Judge.

Action to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Miles & Steele, for appellant.

Wilson & Smith and Poston & Murrow, for appellee.

WEAVER, J.

The defendant operates a coal mine in which at the time of the accident in question the plaintiff was employed. He had considerable experience in the ordinary work of mining or digging coal, and was engaged in this class of work until a short time prior to his injury, when he took the position of cager. The shaft in which the cage or hoist was operated was 240 feet in depth. Plaintiff's place of work was in the entry at the foot of the shaft. The cage was constructed with an open floor or platform at the bottom, on which were two parallel rails corresponding in gauge with the rails on which the coal cars in the mine were operated. In hoisting coal the cage was first lowered to the bottom, where the platform to which we have referred rests on a level with the car tracks in the entry. The duty of the cager is then to push the loaded cars from the tracks in the entry to the platform of the cage, which is then hoisted with its load to the surface. The business of coal mining in this state has been made the subject of statutory regulation, and among the safety appliances which the operator must provide are “proper covers overhead on all cages.” Code, § 2489. The precise purpose of such covers is not definitely expressed in the statute, but quite obviously they are intended to protect the employés and others who may be upon a cage or in the shaft beneath from injury by the falling of coal or other heavy substances from the top. See Bodell v. Coal Co., 25 Ind. App. 654, 58 N. E. 856;Durant v. Coal Co., 97 Mo. 62, 10 S. W. 484. The cage in defendant's mine was provided with a cover, but plaintiff alleges, and there was evidence tending to show, that it was considerably smaller than the shaft through which the cage was hoisted and lowered. The platform or floor of the cage was of a size to nearly fill the shaft, but the cover, or bonnet as it appears to be called in miners' parlance, was narrower, leaving an opening variously estimated at from 10 to 14 inches in width through which a lump of coal falling from the top could pass to the floor. On the day in question, the plaintiff in the discharge of his duty as cager undertook to push a loaded coal car from the entry to its place upon the platform of the cage, and in so doing his hand, resting upon the car, was extended out from the shelter of the entry into the shaft and under the opening between the bonnet and the wall. In doing this a lump of coal falling from the top struck his hand, perforating it, breaking some of the bones, and leaving that member to a material extent in a permanently crippled condition. It is the claim of plaintiff that this injury is chargeable to the negligence of the defendant in failing to provide a large and more effective covering for the cage. The defendant takes issue upon the charge of negligence, denies that plaintiff exercised due care for his own safety, and alleges that he knew the condition under which the work was being done, and assumed the risk therefrom. It is also alleged that the negligence, if any, from which the plaintiff suffered injury, was that of a fellow servant. There was trial to a jury, and verdict and judgment for plaintiff in the sum of $3,200, and defendant appeals.

1. There was evidence tending to show that, having observed the insufficient covering of the cage, plaintiff called the attention of the pit boss to its condition, and the latter assured him he would fix it “as soon as possible,” or “as soon as he could,” or “had a lay-off,” and the plaintiff, relying on the assurance thus given, continued the work. Appellant argues that a notice to the pit boss was not notice to the company, and the plaintiff was not authorized to rely upon his promise to repair. For reasons stated in a subsequent paragraph of this opinion, the question thus raised is not of controlling importance, but we think the notice was sufficient, and the plaintiff was entitled to rely upon the promise of the pit boss as the promise of the employer. He was the person who employed the plaintiff and other operatives in the mine, and he had authority to discharge them. He had immediate charge of the actual underground operations, and, if any defect or dangerous condition therein was called to his attention, it was his duty either to remedy it or to report it to the proper office or department within whose scope such work properly belonged. The duty of the company to provide a safe place to work could not be delegated or left to the discretion of a servant, nor could it leave the operation of its mine or shaft without the responsible care and foresight of some person, and escape all responsibility until some miner or cager should hunt up the directors or managers, and serve formal notice upon them. The boss in immediate charge and control of the men and of the work as well as of the place is the one to whom they naturally and properly look as the representative of the corporation, and there is nothing in the record of this case to take it out from under the operation of this rule. Wahlquist v. Maple Grove, 116 Iowa, 720, 89 N. W. 98;Beresford v. Coal Co., 124 Iowa, 44, 98 N. W. 902, 70 L. R. A. 256; Coal Co. v. Swaggerty, 159 Ind. 664, 62 N. E. 1103, 65 N. E. 1026; Wellston v. Smith, 65 Ohio St. 70, 61 N. E. 143, 55 L. R. A. 99, 87 Am. St. Rep. 547;Coal Co. v. Wombacher, 134 Ill. 57, 24 N. E. 627;Meier v. Way. 136 Iowa, 305, 111 N. W. 420, 125 Am. St. Rep. 254;Blazenic v. Coal Co., 102 Iowa, 706, 72 N. W. 292. We cannot say, therefore, as a matter of law that the pit boss was not in this instance a vice principal, or that plaintiff was not justified in relying upon his promise to make the repair. It is to be noticed, also, that, as far as the merits of this case turn upon the question of notice to the company of the alleged defect, the fault, if one there was, pertained to the matter of the original construction of the cage covering, and notice of its condition is therefore conclusively presumed.

2. Appellant argues, also, that, even if it be found that defendant was negligent in the matter of its statutory duty to furnish a proper cover for the cage, plaintiff should be held as a matter of law to have assumed the risk because the danger therefrom was obvious, and he knew the conditions of which he now complains. In support of this contention, we are cited to Sutton v. Bakery Co., 135 Iowa, 390, 112 N. W. 836. It is to be conceded that in the opinion referred to an expression is used to the effect that, if there was a breach of statutory duty by the employer with reference to a safety device, plaintiff was nevertheless not absolved from the consequence of his voluntary assumption of the risk. The case was one in which the plaintiff's contributory negligence was so obvious that the court was united in the opinion that the order of the district court in directing a verdict for defendant should be affirmed. In disposing of the appeal, the opinion went somewhat beyond the last ground here mentioned, and made use of the language upon which appellant now relies without any general discussion of the question as to the effect of statutory regulation upon the application of the rule of assumption of risk. In the case before us, we are for the first time confronted with a record which seems to render necessary a definite pronouncement upon this phase of the law of negligence, and we are disposed to treat it as res integra in this jurisdiction. Statutory regulation of the manner in which any particular line of business shall be carried on is an exercise of the police power of the state, and is intended in some instances as an instrument of protection to the public generally, and in others as a protection to certain classes of employés exposed to special hazards. For example, a statute regulating the speed of railway trains or of street cars in cities and towns is meant primarily for the benefit of the general public...