Republic Iron & Steel Co. v. Thomasino

• Decision Date: 08 February 1910
• Docket Number: 1,984.
• Citation: 176 F. 49
• Parties: REPUBLIC IRON & STEEL CO. v. THOMASINO. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

176 F. 49

REPUBLIC IRON & STEEL CO. v. THOMASINO. ^[1]

No. 1,984.

United States Court of Appeals, Fifth Circuit.

February 8, 1910

This action was brought by Leon Thomasino, hereinafter styled 'plaintiff,' as administrator of the estate of Tony Thomasino, against the Republic Iron & Steel Company hereinafter styled 'defendant,' claiming $20,000 damages for the killing of plaintiff's intestate.

The complaint charges that the defendant was operating a coal mine at or near Sayreton, Jefferson county, Ala., and that on August 16, 1905, the said Tony Thomasino was in the employment of the defendant as a coal miner, and, while so engaged in and about the said service of the business of the defendant in said mine, a part of the roof or top of the said mine fell upon said Tony Thomasino, and as a proximate consequence thereof he was so injured that he died.

In the first count of the complaint it is charged that the death was caused by reason of a defect in the condition of the ways works, and machinery or plant used in connection with the said business, to wit, the roof or top of said mine was not sufficiently propped to prevent its falling, which defect arose from or had not been discovered or remedied, owing to the negligence of the defendant or of some person in the service or employment of the defendant intrusted with the duty of seeing that the ways, works, and machinery or plant were in proper condition.

In the second count it is charged that the death was the proximate consequence of the negligence of a person in the service or employment and intrusted by the defendant with superintendence while in the exercise of such superintendence, to wit, one W. M. Mason.

And in the third count the death is charged as occurring through the proximate cause of the negligence of a person in the employment of the defendant with superintendence whilst in the exercise of such superintendence, to wit, some person unknown.

The fourth count is very similar to the second, but charges that said Mason negligently failed to sufficiently prop or secure from falling the said roof or part thereof which fell upon and killed the said intestate.

The fifth count is similar to the third, but more specific in charging that some unknown person intrusted with superintendence negligently failed to sufficiently prop or secure from falling said roof or part thereof.

The sixth count charges that the death was the proximate consequence of the negligence of said Mason intrusted by the defendant with and exercising superintendence in failing to furnish plaintiff's intestate with sufficient props to secure said roof.

And the seventh is similar to the sixth, except it varies in charging that the negligence of an unknown person in the service or employment of the defendant charged with superintendence negligently failed to furnish plaintiff's intestate at his place of work a sufficient number of props to secure said roof or part thereof, etc.

The defendant answered with a plea of not guilty; that it was the duty of plaintiff's intestate to keep his room properly timbered or propped; that he negligently failed to timber or prop said room, in that he placed the timbers or props of said room at too great a distance apart, thereby rendering said roof likely to fall; that his negligence in this regard contributed to and was the proximate cause of his death; that the fall of said roof was caused by the fact that the timbers by which the same was propped were placed at a distance of 16 feet from the face of said mine rendering the roof thereby likely to fall; that the timbering of the said room in this manner was unsafe and dangerous, and such danger was obvious and apparent to plaintiff's intestate, and notwithstanding such obvious and apparent danger plaintiff's intestate undertook to mine in said room with the roof thereof timbered in such manner, and thereby assumed the risk of the roof falling upon him; that plaintiff's intestate was killed by the roof falling upon him because it had been improperly propped or supported by timbers; that plaintiff's intestate had been cautioned by the defendant as to the necessity of having any such props; that, notwithstanding such caution and warning, he continued to work in said mine while such props or timbers were in there at such distance, and thereby he assumed the risk of said roof falling; and, finally, that plaintiff's intestate was aware that the roof was not propped or supported by props and was rendered unsafe, thereby and notwithstanding said knowledge plaintiff's intestate continued to mine under said roof, whereby and as a proximate consequence of which plaintiff's intestate was killed.

There was considerable skirmishing with demurrers to the complaint, to the pleas, and to the replications, not necessary to recite, and the parties went to trial on the issues as presented by the plaintiff as above mentioned, and the pleas of the defendant.

On the trial there was evidence showing that Tony Thomasino was killed while in the employment of the defendant as a coal miner. He had been in the employment of the defendant some six months. On seeking the employment, he represented himself as a practical coal miner and was given the job as such and assigned to a room with another miner, his cousin, Joe, as an assistant or 'buddy.' From the time he entered the service of the defendant he worked in the same room driving it 150 feet from the heading until August 16, 1905, when he was killed by the roof of his room falling upon him. The roof fell because it was not sufficiently propped or supported by timbers.

On the trial it was conceded that it was the duty of plaintiff in error to furnish the timbers for propping, and the duty of said Tony Thomasino to look after his room and set the necessary props. Both said Tony Thomasino and his assistant knew for what purpose props were used, how to set them, and that there was danger when not used; in fact, there was undisputed evidence showing that Tony Thomasino had been actually warned as to the danger if he did not prop, and, on one occasion, he had been suspended by the mine foreman because he failed to obey instructions by not setting the mine props close enough together.

There was also undisputed evidence showing that two or three days before Tony Thomasino was killed he was warned by his boss that he was not propping close enough to the face, and that it was dangerous rock, and he was told to set props closer, and promised to do so. It appears further, and on undisputed evidence, that each day a miner and his assistant in mining average from five to six feet into the face of the room, so that a new roof from five to six feet in length is over the mine as the miner does his work.

Joe Thomasino, a witness for the plaintiff, testified, in substance, as follows.

My cousin, Tony Thomasino, and myself were working for defendant company at Sayreton, on August 16, 1905, and were working together under the same roof. Tony had been working at that time about six months. I don't know what he worked at before this. I was present when Tony was killed, was about 14 or 15 feet from him. Some rock fell from the top of the room on him and killed him. The rock was four or five inches thick. Tony was killed between half after 11 and half after 1 o'clock in the morning. When we went to work that morning, Tony and I examined the roof, and it seemed all right. I had worked one month as a miner with Tony Thomasino. Tony knew better about mining than I did.

Here the witness was asked the following question: 'Whose duty was it to furnish props to the miners working in the mines? ' And the court stated: 'Isn't that without dispute?' And it was thereupon stated by defendant's counsel that there were two things not in dispute. One was that it was the duty of the company to furnish props, and the other was that it was the duty of the miner to set the props and prop his own room, and to this statement counsel for plaintiff made no objection.

I heard the conversation on top between Tony and Mr. Mason when Tony asked him for props, and Mr. Mason said: 'The top is all right. You go ahead and go to work. If you don't go to work, you can quit. ' Mr. Mason said: 'Never mind, you go ahead. The top is all right, and after a while, as soon as I can, I will send you props. ' We then went to work, and the driver came into the room, and we asked him for props, and he said he didn't have any, and said: 'You will have to tell it to the boss. ' No props were sent to our room after we asked for them. If props had been under our roof it would not have fallen. If it had been propped it would have made a motion when it started to fall, and we could have heard it and got out of the way. The nearest prop from the face of the mine at the time the roof fell was from 20 to 30 feet. It was about two, or may be three, days after he heard Tony ask Mr. Mason for props before Tony was killed.

On cross-examination this witness testified as follows:

'I had worked in this same room ever since I had commenced mining. Tony was working in that room when I commenced working there. We had been setting props under the roof, and we set them under the roof for the purpose of keeping the roof from falling on us. I knew, and Tony knew, that the roof had to be propped, and if it had been propped the props would have held the roof, and if the roof had started to fall they would have held it until we got out of the way. Tony and I had been putting in these props together all the time we worked there. Tony was boss over me. I was his buddy, and he was a miner. Tony would direct me where to put the props, but pretty soon I learned myself how to put the props. We worked in this room about four or five days before Tony was killed

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