Southern Anthracite Coal Company v. Bowen

• Decision Date: 13 December 1909
• Citation: 124 S.W. 1048,93 Ark. 140
• Parties: SOUTHERN ANTHRACITE COAL COMPANY v. BOWEN
• Court: Arkansas Supreme Court

124 S.W. 1048

93 Ark. 140

SOUTHERN ANTHRACITE COAL COMPANY v. BOWEN

Supreme Court of Arkansas

December 13, 1909

[Copyrighted Material Omitted]

Appeal from Pope Circuit Court; J. H. Basham, Judge; reversed.

STATEMENT BY THE COURT.

Appellees were carpenters, and in the employ of appellant in and about its coal mine. The mine was operated by a shaft, separated into two divisions by wooden partition. Two cages were used to hoist the coal and to let down and hoist men and material. To these cages wire ropes were attached, and the ropes passed over a drum, and the cages were propelled up and down by an engine. They were so arranged that one went up while the other went down. On October 15, 1907, as the cage on the north division of the shaft was coming up with a car of coal it toppled over within about twenty feet of the top, and the coal falling back down the shaft displaced the timbers below and caused the descending car in the south division to stick in the shaft about forty feet from the bottom. Appellees went down to unfasten this cage, and while they were on the cage same fell with them to the bottom, and they were seriously injured. They each filed separate complaints against appellant, in which they allege, among other things, the following: "That the general manager then in charge of said mine carelessly and negligently, and without proper and reasonable care for the safety of plaintiff, caused said wire rope attached to said hung cage to be fastened and held in an insufficient and dangerous way; that is to say, only by means of clamping wire rope at the top of said shaft by fastening and bolting together timbers with said rope between. The said wire rope was one inch in diameter, and worn very slick and smooth, and was also oily. And the said timbers used as clamps were oak and pine with a small iron clamp above. This plaintiff objected to the manner in which the wire rope was being fastened or clamped, and suggested to said general manager that it should be tied to a large timber 12 x 13 which was bolted and fastened to other timbers, being a part of the foundation of the engine, which manner of fastening said rope was practicable and feasible. But this suggestion by plaintiff was not adopted by the general manager in charge of said mine, but the other manner or mode of fastening said rope by means of clamping it as above explained was ordered by said general manager, stating that it was sufficient and would be safe. Whereupon said general manager ordered and directed plaintiff to go down to the hung cage then fastened and replace and adjust all timbers and to loosen and unfasten said cage. In obedience to said order plaintiff and his co-employees (naming them) went down to said cage thus hung, and, in order to adjust the timber and said cage, it became necessary for plaintiff and co-employees to get on to said cage that was fastened. And, after getting upon said cage and loosening it and readjusting the timbers which were holding it, said cage became loose, and all obstructions removed, and on account of the careless and insufficient manner in which said wire rope had been clamped or fastened, and without fault upon the part of plaintiff, the weight of the said cage, together with the weight of said two men, jerked the rope through between said two timbers, and fell with great force and velocity to the bottom of said shaft, from which fall plaintiff was seriously and permanently injured.

There was the further allegation in one of the complaints that the defendant was negligent in failing to furnish said cage with, and attach thereto, sufficient spring catches to prevent the consequence of cable breaking or the loosening or disconnecting of the machinery attached to said cage.

The injuries received by the respective complainants were described in their complaints. Appellee Bowen laid his damages at $ 5,000, and appellee Thrasher laid his damages at $ 20,000.

The appellant answered the respective complaints, denying all the material allegations and setting up the defenses of injury by fellow servants, contributory negligence and assumed risk. The causes were consolidated over appellant's objection, and the jury returned a verdict in favor of appellee Thrasher for $ 5,000 and in favor of appellee Bowen for $ 500. Judgment was entered in favor of each appellee for the amount of the verdict obtained by him, and this appeal has been duly prosecuted. Other facts stated in the opinion.

Judgment affirmed, reversed and cause remanded.

Read & McDonough, for appellants.

Before cases can be consolidated they must relate to the same question. 83 Ark. 288; 145 U.S. 285. If consolidation prejudices the rights of any of the parties, it should not be ordered. 84 N.Y.S. 503; 74 Ark. 54; 57 A. 257. If the issues are different, there can be no consolidation. 19 Wend. 23; 142 Mass. 220; 55 F. 769; 21 S.W. 757; 124 Mo.App. 600. The master is not an insurer of the safety of his employees. 44 Ark. 524; 76 Ark. 436; 71 Ark. 518; 88 Ark. 295. While a master cannot relieve himself from liability by delegating his authority, yet he can relieve himself from liability to the servant to whom the authority is delegated. 44 Ark. 524; 88 Ark. 292; 58 Ark. 217; 76 Ark. 69. The proof does not show any failure of duty on defendant's part. 76 Ark. 69.

U. L. Meade and Davis & Pace, for appellees.

These cases were properly consolidated. 86 Ark. 130; 83 Ark. 290. Matters of practice within the discretion of the trial court will not be reviewed by the Supreme Court unless that discretion has been abused. 10 Ark. 428; 5 Ark. 208. Consolidating cases, under the act of 1905, p. 798, is left to the discretion of the trial court. 145 U.S. 285. There was no error in refusing to enforce the rule against the witnesses. 56 Ark. 404; 77 Ark. 603. Erroneous statements of counsel are cured by the court's directing the jury to disregard it. 58 Ark. 353; 74 Ark. 256; 75 Ark. 347. If the instructions given present every phase of the law applicable to the case, they are sufficient. 88 Ark. 524; 83 Ark. 61; 77 Ark. 458; 69 Ark. 558; 67 Ark. 531; 75 Ark. 325; 74 Ark. 377.

OPINION

WOOD, J. (after stating the facts).

First. The causes were of "a like nature" and "relative to the same question." The cause of action alleged in each case grew out of the same state of facts. The defenses alleged in each were the same, although the evidence in support of the defenses of contributory negligence and assumed risk in the Thrasher case was different from that in the Bowen case. The injury to each was caused at the same time and by the same agency, proceeding from the same source. The appellees had to rely upon the same evidence to support their alleged causes of action. The issues raised by the pleadings were precisely the same, and the court, after the evidence was in, by correct instructions might have prevented any confusion in the application of the doctrine of contributory negligence and assumed risk as applicable to the respective plaintiffs. The causes here were certainly as appropriate for consolidation as any of the following where it was approved: St. Louis, I. M. & S. Ry. Co. v. Broomfield, 83 Ark. 288, 104 S.W. 133; American Insurance Co. v. Haynie, 91 Ark. 43, 120 S.W. 825. See also Mahoney v. Roberts, 86 Ark. 130, 110 S.W. 225.

Second. Under the statute providing that "if either party require it the judge may exclude from the court room any witness of the adverse party" (Kirby's Dig., § 3142), it is within the discretion of the court to exclude witnesses from the court room. Where the court overrules a motion to exclude, there is no error unless it appears that some prejudice resulted. No prejudice is shown here. St. Louis, I. M. & S. Ry. Co. v. Pate, 90 Ark. 135, 118 S.W. 260.

Third. Counsel for appellees in the opening statement to the jury said: "The owners are not the ones that are liable." This was only tantamount to a declaration that appellant expected to prove that it was not the one who was liable for any injuries sustained by appellees. The remarks were not prejudicial in themselves. The ruling of the court withdrawing them and instructing the jury not to consider them, removed any possible prejudicial inference that the jury might otherwise have drawn from them. Little Rock & Fort Smith Ry. Co. v. Cavenesse, 48 Ark. 106, 2 S.W. 505; Kansas City S. Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428; Carpenter v. Hammer, 75 Ark. 347, 87 S.W. 646. The remarks were not of such prejudicial nature that the effect could not be removed by instructions of the court to disregard the remarks.

Fourth. The testimony on hehalf of appellees tended to show that the wire rope attached to the cage that was fastened in the shaft was clamped between two pieces of oak timber, held together by bolts. The rope was fastened in this way at the top of the shaft. The purpose in so securing it was to prevent the cage from falling after the men had gone down and unfastened it. The rope was clamped in this manner under the directions of the manager and general superintendent. Both were present. Thrasher suggested a method of fastening the rope which he regarded as more secure, but the manager did not adopt his suggestions, but proceeded to have the rope fastened in the manner indicated. While the rope was being fastened appellees were called away, and when they were called back and were directed by the manager to go down to unfasten the cage, they made no further examination of the manner by which the rope was fastened at the top. Thrasher and Bowen obeyed the orders of the general manager and superintendent to go down and unfasten the cage. They went down without inspecting the manner in which the rope wasn't fastened "because the mine owner directed it. He was a practical man and a...