Starck v. Washington Union Coal Co.

• Decision Date: 14 December 1910
• Parties: STARCK v. WASHINGTON UNION COAL CO.
• Court: Washington Supreme Court

112 P. 235

61 Wash. 213

STARCK v. WASHINGTON UNION COAL CO.

Supreme Court of Washington

December 14, 1910

Department 2. Appeal from Superior Court, Clarke County; Donald McMaster, Judge.

Action by Bernard Starck against the Washington Union Coal Company. Judgment for plaintiff. Defendant appeals. Affirmed.

W. W Cotton, Arthur C. Spencer, Jas. P. Stapleton, and Ralph E Moody, for appellant.

Owens &amp Finck, A. L. Miller, and Reynolds, Ballinger & Hutson, for respondent.

DUNBAR J.

The appellant owns and operates a coal mine in Thurston county, in this state, and the respondent was employed to work in such mine. While working he was injured, and brought this action against the appellant to recover damages for such injury in the sum of $25,475. The complaint alleges, among other things, that on the 5th day of May, 1909, respondent was working in a room or tunnel in said mine by excavating coal, earth, and stone in the progress of the mining operations of appellant; that in said room there were three layers or ledges of coal, the top of the uppermost of which three ledges ran to the roof of said room; that in the mining of the coal it was the custom to drill between said veins or ledges of coal for a distance of approximately six feet and place explosive therein, which explosives were fired at night, at the conclusion of the work in said room, for the purpose of throwing down and dislodging the coal and materials between the same, and, upon resuming work the following day, the miners loaded the coal and material into cars in said room to be taken to the surface of the mine; that occasionally the explosives would not break loose all of the upper ledge of the coal, and a portion thereof, not exceeding six feet in length, would be left adhering to the roof of said room; that respondent was accustomed to prop up, not merely the roof of the room, but also such coal in the upper seam or ledge which might adhere to the roof; that, unless the roof and the coal adhering thereto were properly timbered or shored up or otherwise supported, the coal and the roof were apt to fall, and were very dangerous to miners working in the room mining the coal; that on and prior to May 5, 1909, the roof of said room, for a distance of approximately 30 feet from the working of said mine, was not propped up, or in any way timbered or shored so as to prevent the same from falling; that, by reason of said fact, there was danger that said roof and coal would fall; that on said date respondent complained to appellant's foreman that such roof was dangerous, and requested the foreman to furnish timber or props to be used in securing said roof and making it safe; whereupon appellant's foreman examined said roof, and pronounced the same safe, and assured respondent that the same was safe and would not fall upon him; that again, on or about the 4th of May, 1909, respondent called the foreman's attention to the condition of said roof, and that it was not propped up, and again requested the foreman to furnish him with timbers for props to secure said roof; that the foreman again assured respondent that the roof was safe, but promised to send props to said working place to be used in securing said roof; that respondent believed and relied upon said assurances of said foreman and upon his promise to furnish timbers and props to secure said roof; that thereafter, and on the 5th day of May, 1909, there being coal from said upper seam or ledge adhering to the roof of said room, and the same requiring to be timbered or propped up, respondent again requested the foreman to furnish said props or timbers; that the foreman again examined saif roof and examined said coal, and informed respondent, and respondent believed, that the roof and coal were not immediately dangerous; that the foreman thereupon promised to furnish props and timber to secure said roof and said coal, and respondent relied thereon, and, in relying upon said assurances of the foreman, continued to work in the mine; that the foreman was the person in charge of that portion of the mine in which respondent was working, and was the proper agent of appellant to furnish props and timber for the use of said working place, and the proper person for respondent to apply to; that neither the foreman nor any other agent of appellant, nor appellant, furnished any timber for use as props whatever to hold up or secure said roof or prevent it from falling, nor did appellant keep a sufficient supply, or any supply, at the mines so that the workmen therein might be able to properly secure the roof of said mine; that all these facts were on the 5th day of May, 1909, and during all the time of their continuance, well known to appellant and his foreman, but that respondent relied upon said assurance of the foreman that the said place of work was safe, and upon his promise to supply props to hold up said roof, and, believing said assurance and promise, continued to work at said place until the happening of the accident. The complaint further sets out the nature of the accident and the damages arising therefrom; the accident being caused by the caving in and falling upon respondent of the coal from the roof. The answer denied the failure of the appellant to furnish respondent with props as required by law, alleged that the respondent and his fellow servant, who was killed at the time of the injury to the respondent, were on the day of the falling of said top coal and the injury complained of warned by the foreman of the mine and by other workmen in the mine that it was unsafe for them to continue work under such overhanging coal, and that they should prop up the same, and alleged negligence on the part of the respondent, that the dangers and risks of working under this coal at the place described in the complaint were open, obvious, and apparent and understood by respondent, and were voluntarily assumed as the risk and danger incident to his employment, and that it was the duty of the respondent to use the timbers furnished him by appellant in propping up and timbering the overhanging coal as the work progressed. The affirmative matter in the defense was denied by the reply, and upon these issues the cause went to trial by a jury, and verdict in favor of the respondent for $20,000 resulted. The ordinary motions were made before verdict. After the return of the verdict, a motion for new trial was made and refused, judgment entered, and appeal followed.

The first assignment of error is that the amended complaint fails to state facts sufficient to constitute a cause of action against the appellant, because it shows upon its face that whatever injury respondent suffered was caused through his own want of care and prudence, and through his own negligence, and that he directly contributed thereto and was guilty of contributory negligence; that when the respondent stated that he was accustomed to prop up, not merely the roof of said room, but also such coal of the upper seam or ledge which might adhere to said roof, and that unless such roof and said coal adhering thereto were properly timbered or shored up, or otherwise supported, it created a dangerous condition; that condition and other statements of the complaint which we have set forth conclusively show that it was no surprise to the respondent that the coal adhering to the roof fell upon him, for he knew that it was likely to do just what it did, and expected that it would do so; that the matters and things stated in the complaint conclusively show contributory negligence on the part of the respondent as a matter of law. Appellant cites Green v Western American Company, 30 Wash. 87, 70 P. 310, and Narramore v. Cleveland, etc., Ry. Co., 96 F. 298, 37 C. C. A. 499, 48 L. R. A. 68, to sustain this contention. It is contended by the appellant that the matters and things set forth in the complaint could be brought to the knowledge of the respondent only by observation of the roof, and, that being true, the respondent was in a better position to observe them, working continuously in the room with the coal, than was the foreman; that, if they were in such a dangerous situation, it must be brought to the attention of the foreman by such casual observation as one in his position would make in passing in and through said room, and that the danger would therefore be much more apparent to an experienced miner who was all the time in the room working at the coal. There are two sufficient answers to this contention. The first is that it ignores the rule, which is well established in this court and in practically all the courts in the Union, that the servant has a right to rely upon representations of the master that the dangerous condition of which the servant notifies the master will be corrected. This doctrine proceeds upon the theory that the promise of the master to amend constitutes an implied contract on his part that he will be responsible for the safety of the servant so far as the safety of the place is concerned; or, in other words, that he will assume the risk incident to working in the particular place. It is true the complaint says that the roof had become dangerous, and no doubt it was the belief of the respondent that the roof was dangerous. But, upon reporting the danger to the foreman, this promise was made with the assurance on the part of the foreman that the roof was safe. That assurance was made after an examination by the foreman in the presence of the respondent, and upon that assurance and promise respondent unquestionably had a right to rely. Nor should the examination made by the foreman under such circumstances have been a casual examination or observation. His duty was to inspect, not casually, but thoroughly, and it was upon the presumedly thorough...