Potier v. Winifred Coal Co.

• Decision Date: 18 October 1921
• Docket Number: 33687
• Parties: ADOLPH POTIER, Appellant, v. WINIFRED COAL COMPANY, Appellee
• Court: Iowa Supreme Court

184 N.W. 739

192 Iowa 1280

ADOLPH POTIER, Appellant, v. WINIFRED COAL COMPANY, Appellee

No. 33687

Supreme Court of Iowa, Des Moines

October 18, 1921

REHEARING DENIED JANUARY 20, 1922.

Appeal from Appanoose District Court.--SENECA CORNELL, Judge.

ACTION for damages for personal injuries sustained by plaintiff while at work in defendant's coal mine. There was a verdict for the defendant, and judgment was entered thereon from which the plaintiff has appealed.

Affirmed.

John Clarkson and Fred C. Huebner, for appellant.

Howell Elgin & Howell, for appellee.

ARTHUR, J. EVANS, C. J., STEVENS and FAVILLE, JJ., concur.

OPINION

ARTHUR, J.

The petition averred and the evidence disclosed that the defendant had rejected the provisions of the Compensation Act, and had elected to assume liability for damages under the common law, as modified by the statutes of this state.

The answer of the defendant denied negligence on its part, and pleaded affirmatively that it was not guilty of any negligence which was the proximate cause of plaintiff's injury, and pleaded further that the plaintiff's own negligence was the sole proximate cause of such injury. The salient facts which the evidence tended to prove, stated briefly, are that the plaintiff was a miner, in the employ of the defendant, and engaged in the work of mining coal; that between the plaintiff's place of work and the "switch" at which he delivered his coal was an entryway, through which the plaintiff wheeled his coal; that the roof of such entryway became dangerous at a point about 50 feet from plaintiff's place of work; that the plaintiff discovered such dangerous condition, and at once notified the superintendent and mine foreman; that at the same time he at once ceased the work of mining, and refused to further wheel his coal under such dangerous roof, and so notified the superintendent and foreman, who fully coincided with the plaintiff in his judgment of the dangerous character of the roof; that it became thereupon the duty of the defendant company to "brush" said roof, by causing the taking down of all the loose rock therein; that the company had in its employment regular men whose duty it was to do such work upon delegation thereto; that, under the custom of the mine, it was the privilege of the miner who used such entryway to demand the right of doing such job, for which a liberal scale of compensation was provided, independently of the compensation for mining coal; that, pursuant to this custom, the plaintiff agreed with the superintendent and foreman to do the job for the stated compensation, and entered upon such work; that he was experienced and competent for the purpose, and was under no supervision as to the time or method of doing the work or as to the tools to be used; that, while he was engaged in such work, and after he had taken down a considerable quantity of loose slate, he was injured by a further falling of slate.

The errors relied on by appellant for reversal relate wholly to certain instructions given by the trial court. Instructions Nos. 4, 7, 8, 9, 10, 11, and 16 were as follows:

"IV. Before the plaintiff can recover, he must establish by the greater weight or preponderance of the evidence:

"First. That he was injured while in the employ of the defendant.

"Second. That such injury arose out of and was received in the usual course of such employment.

"If the plaintiff has so shown, then he would be entitled to recover, unless the defendant has established by the greater weight or preponderance of the evidence that the defendant was not guilty of any negligence that was the proximate cause of the injury to plaintiff.

"VII. The law of this state provides that, in cases of this kind, the employer shall not escape liability for personal injury sustained by an employee of such employer when the injury sustained arises out of and in the usual course of the employment, because:

"1. The employee assumes the risk inherent in or incidental to or arising out of his employment, or the risk arising from the failure of the employer to furnish and maintain a reasonably safe place to work, or because the employer exercised reasonable care in selecting reasonably competent employees in the business.

"2. That the employer was negligent unless and except it shall appear that such negligence was willful and with intent to cause the injury.

"VIII. Where an employee, in such a case as this, sustains an injury arising out of and in the usual course of his employment, the law presumes that such injury was the direct result and growing out of the negligence of the employer, and that such negligence was the proximate cause of the injury; and in such case, the burden of proof rests upon the employer to rebut such presumption.

"IX. Contributory negligence, if any, on the part of the plaintiff,--that is, negligence on the part of the plaintiff that combined with negligence on the part of the defendant to cause the injury,--would be no defense; but if you find, by the greater weight or preponderance of the evidence, that the plaintiff's injury, if any, was caused wholly or altogether by the plaintiff's own negligence, or his failure to exercise ordinary and reasonable care for his own safety, and that the defendant was not guilty of any negligence that was the proximate cause of such injury, then plaintiff cannot recover.

"X. If you find by the greater weight or preponderance of the evidence that the plaintiff was injured while in the employ of the defendant, and that such injury arose out of and was received in the usual course of such employment, then the plaintiff would be entitled to recover, unless you find, by the greater weight or preponderance of the evidence, that the defendant was not guilty of any negligence that was the proximate cause of the injury; but if you so find that the defendant was not guilty of any negligence, or, if negligent, that such negligence was not the proximate cause of decedent's injury, then the plaintiff cannot recover.

"XVI. If you find from a preponderance of the evidence that, on the morning of the accident, the plaintiff discovered a loose rock in the entry where the injury occurred, and that he regarded the rock as dangerous, and if you further so find that he told the superintendent and the pit boss about said loose rock, and that the superintendent and pit boss went to the place indicated by the plaintiff and inspected said alleged loose rock and found that the same was loose and dangerous, and if you further so find that the plaintiff contracted with the superintendent of the defendant to take down said rock, and that, in taking down said loose rock, the same fell on the plaintiff and caused the injury complained of by him, then the plaintiff cannot recover."

Appellant concedes that Instructions 4, 8, and 10 present a correct statement of the law. Complaint is directed by appellant against the other instructions above set forth, largely on the ground that they are inconsistent with and contradictory to the first named instructions. For the purpose of this discussion, we shall accept appellant's concession, and deem the law of the case to be correctly set forth in Instructions 4, 8, and 10.

I. It will be noted that, in Paragraph 2 of Instruction 7, the court used the word "employer," instead of the word "employee." This was manifestly a slip of the pen. Appellant complains of it, however, on the ground that it would necessarily mislead the jury as to the law. We may assume it to be true that, if the mistake was fairly calculated to mislead the jury, the error could not be ignored merely because it was an inadvertence.

A careful analysis of the instruction satisfies us that it cannot fairly be said that the jury was misled by it, for the following reasons:

(1) The inadvertence was so manifest that it was fairly discoverable by the jury. (2) The paragraph as actually written reduces itself to a nullity. The result was the same as though the paragraph had been omitted entirely. (3) The paragraph, if in proper form, might properly have been omitted altogether. There was neither issue nor evidence in the case of willful negligence.

Inadvertences of this kind have been frequently presented to us as grounds of reversal. These include the transposition of the names of the parties, such as using the word "plaintiff" for the "defendant," and vice versa; a mistake in the Christian name of one of...