Sidwell v. Econ. Coal Co.

• Decision Date: 04 April 1911
• Citation: 130 N.W. 729
• Parties: SIDWELL v. ECONOMY COAL CO.
• Court: Iowa Supreme Court

130 N.W. 729

SIDWELL

v.ECONOMY COAL CO.

Supreme Court of Iowa.

April 4, 1911.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action to recover damages for the death of John J. Doty, who is alleged to have lost his life because of the negligence of defendant. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Hewitt, Miller & Wallingford, for appellant.

E. A. Lingenfelter, for appellee.

WEAVER, J.

The defendant operates a coal mine in Polk county, Iowa. On October 20, 1907, John J. Doty, being employed by defendant for that purpose, was directed to assist in cleaning out the air course or passage constructed for the ventilation of the entries and chambers of the mine in which the work of digging and removing the coal was carried on. This air course had become obstructed to some extent by falls of rock from the roof and by the upheavel or lifting of the floor or bulging of the sides, due to the great pressure upon the pillars or walls, constituting what is known in miner's parlance as a “squeeze.” Doty was one of the gang of four men employed in remedying this condition, and while so employed he was crushed and fatally injured by a fall of rock from the roof. It is the claim of plaintiff, who sues as administrator of Doty's estate, that the deceased was without experience in this line of work and did not know or appreciate its dangerous character, and that defendant negligently ordered him to take part therein without warning or instruction as to its perils, or of the precautions necessary to be observed in avoiding them, and that by reason of such negligence the deceased came to his death without contributory fault on his part.

The defendant denies that it was in any manner negligent, and avers the negligence of the deceased himself was the proximate cause of the accident. It further pleads that said Doty well knew, or under all the circumstances should have known, the condition and danger of the place in which he worked and the perils to which he was there exposed, and that with such knowledge and means of knowledge he elected to remain in said employment, and thereby assumed the risk and waived all right of recovery against the defendant for injuries he might there sustain. Further answering the defendant says that the air course was not intended or used as a place of work, except as certain employés might from time to time be called upon to clean it and keep it in repair; that at the time of the accident said air course had become obstructed by falls from above and by squeezing up from below, and in removing this condition it was necessary for deceased and his fellow workmen to observe and inspect the roof and sides of the air course and to prop and support the roof, or to remove the loosened fragments of rock, whenever such precautions were necessary to protect themselves from injury, and that the observance of this rule was then the custom of this and other mines in that vicinity. Wherefore it is averred that no duty rested upon the defendant to inspect the roof of the air course or to warn deceased or his fellow workmen of the dangers thus arising in the progress of the work; but that said employés assumed the duty and the risk of making the necessary inspection and applying the necessary remedies or safeguards to protect themselves from injury.

Upon the issues thus joined, there was trial to a jury, and verdict and judgment for damages assessed at $1,500.

The testimony on the part of the plaintiff tends to show that John J. Doty was 26 years old at the time of his death. His usual occupation was formerly that of a teamster, but for the five years last preceding 1907 he had been employed as lineman for a telephone company. Prior to that time he had worked a little while in or about a coal mine in Boone, but the nature and extent of his experience there is not shown. On October 15, 1907, he with three others was taken into the employment of defendant for the work of opening up or cleaning out the air course. Doty with Brooks, a young man 17 years of age, were started in at the south end of the course, and worked north to meet the other two men working from the opposite end. The method pursued was to remove the obstructing material by loading it into a car moved on rails extended upon the floor of the air course as the way was cleared, and in this manner to carry it back to a convenient place of deposit. The younger man, Brooks, appears to have had considerable experience in coal mining and to have taken the lead in the work. Among other things, as they made their way into the air passage, they occasionally took down loose overhanging rock, and in other places erected props and bars to guard against falls. On the morning of the fifth day at this labor, Brooks pointed out a place where he suggested the wisdom of erecting a prop, and Doty responded, “Do you think it needs it?”...