Street v. Erskine-Ramsey Coal Co.

• Decision Date: 17 October 1928
• Docket Number: 98.
• Citation: Street v. Erskine-Ramsey Coal Co., 196 N.C. 178, 145 S.E. 11 (N.C. 1928)
• Parties: STREET v. ERSKINE-RAMSEY COAL CO.
• Court: North Carolina Supreme Court

145 S.E. 11

196 N.C. 178

STREET v. ERSKINE-RAMSEY COAL CO.

No. 98.

Supreme Court of North Carolina

October 17, 1928

Appeal from Superior Court, Chatham County; Nunn, Judge.

Action by Irene Street, administratrix of the estate of Herbert Street, deceased, against the Erskine-Ramsey Coal Company. Judgment for plaintiff, and defendant appeals. No error.

Testimony of witness that forepoling of air course would have protected deceased miner held not incompetent.

The plaintiff was duly appointed and qualified as administratrix of her husband, Herbert Street. This action is for actionable negligence. The plaintiff alleges that her intestate was killed through the negligence of defendant while working in its coal mine, near Gulf, N. C.

The complaint alleges, in part:

"That the plaintiff's intestate was, a day or so previous to his injury and death, working for the defendant in the main airway, loading coal on cars which were operated in its mine, which was the regular position occupied by the plaintiff's intestate; but, on the date aforementioned the plaintiff's intestate was ordered to leave his regular position and to perform the duties aforesaid, under the immediate supervision and control of the said W. H Hill, and not knowing at the time of entering upon said duties in said air course that it was in a dangerous, nor was he, prior to the performance of such duties, advised of its dangerous, condition, but was required to work, by the said W. H. Hill, at a place which was unsafe for him and the other employees working at said place in said 'air course,' in all of said acts the defendant was negligent, and its said negligence was the proximate cause of the injury and death of the plaintiff's intestate. That the defendant was further negligent in that it failed and neglected to erect or construct a covering over the place where plaintiff's intestate was required to work to prevent rock and dirt from falling upon him while in the performance of his duties, in which act aforesaid the defendant was negligent, and its said negligence was the proximate cause of the injury and death of the plaintiff's intestate."

Defendant denied that it was guilty of any negligence, and set up the plea of assumption of risk and contributory negligence.

The issues submitted to the jury and their answers thereto, were as follows:

"(1) Was the plaintiff's intestate injured and killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

(2) Did the plaintiff's intestate voluntarily assume the risk and danger of his employment as alleged in the answer? Answer: No.

(3) Did the plaintiff's intestate by his own negligence contribute to his injury and death, as alleged in the answer? Answer: No.

(4) What damage, if any, is the plaintiff entitled to recover of f the defendant for the injury and death of the plaintiff's intestate? Answer: $3,500."

The defendant made numerous exceptions to certain evidence introduced by plaintiff, and assigned errors. The material ones and facts bearing on same will be considered in the opinion.

Upon conclusion of plaintiff's evidence, the defendant moved for judgment as in case of nonsuit. C. S. § 567. The motion was overruled, defendant excepted, assigned error, and appealed to the Supreme Court.

Seawell & McPherson, of Sanford, for appellant.

W. P. Horton and D. L. Bell, both Pittsboro, for appellee.

CLARKSON J.

The charge of the court below is not in the record. The presumption is that the court below charged the law applicable to the facts on all the issues. The plaintiff's intestate, Herbert Street, was an employee in defendant's coal mine at Gulf, in Chatham county, N.C. He had worked in the coal mine about 8 years before he was killed about August 14, 1927. He was struck, while working in the coal mine, in the head, by a falling rock the size of a man's hat, which broke into several pieces when it struck him, fracturing his skull. He was struck about 3 o'clock on Saturday, and died Sunday evening following at 4 'clock.

The plaintiff's intestate was working under the direction of W. H. Hill, superintendent of defendant's coal mine, who was his boss. In working in the tunnels in the coal mine underground, it was necessary to have an air course. The air course was 13 feet wide. There was a break in it overhead, and it was being repaired. Plaintiff's intestate was working fixing the brace, aiding in timbering and putting up the framework under Hill's direction. There was nothing overhead to protect him from anything that might fall from the top. The air course had fallen in; plaintiff's intestate was helping to get it opened up so ventilation would come through.

Defendant complains and assigns error to the following questions and answers of Fisher Holmes, witness for plaintiff, who testified, in part, as follows:

"I have been in the mine work for 18 years, half the time on work of the character Herbert Street was doing in the Erskine-Ramsey mine when injured, in West Virginia, East Virginia, and North Carolina. There was a falling in, from overhead; they were loading traffic that was falling in and timbering up; setting legs on the side, and putting collars across.

Q. What is the general and approved method of that kind of work? What is the customary way? A. In most of the places where I have been doing this kind of work we use a structure of forepoling, or rat-tailing. The timber would be set erect over the hole, the framework. The timber must be set as much as 4 or 6 feet ahead over the timbers for protection over you under here making the second brace. You pole ahead if you want to continue. That is for protection until you erect another column. We erect timber legs on each side of the wall and set out timber across the forepole across 4 feet ahead and 6 feet ahead for the particular purpose of erecting another column for protection. This forepoling is close like that, right over your head and then you can erect another column under the forepole across like that, extended over. This notifies you of rock and dirt. It would not be sufficient as to save a man, but it would notify and protect in that way. You can hear the dropping and get back. Different sizes of timbers are used. Whether you can put a sufficient amount of timber in to protect against rock and dirt which might fall from above depends on how large it is. I have seen rocks fall from above as big as this desk, or larger than these tables.

Q. How about a rock as big as your hat? A. Well, you could forepole enough, I think, to protect that."

As to the first question and answer: The general principle is well-settled in this jurisdiction, as laid down in Hicks v. Mfg. Co., 138 N.C. at pages 325, 326, 50 S.E. 705:

"It is accepted law in North Carolina that an employer of labor to assist in the operation of railways, mills and other plants where the machinery is more or less complicated, and more especially when driven by mechanical power, is required to provide for his employees, in the exercise of proper care, a reasonably safe place to work and to supply them with machinery, implements and appliances reasonably safe and suitable for the work in which they are engaged, and such as are approved and in general use in plants and places of like kind and character; and an employer is also required to keep such machinery in such condition as far as this can be done in the exercise of proper care and diligence. Witsell v. Railroad, 120 N.C. 557 [27 S.E. 125]; Marks v. Cotton Mills, 135 N.C. 287 [47 S.E. 432]."

See Steeley v. Lumber Co., 165 N.C. 27, 80 S.E. 963; Orr v. Rumbough, 172 N.C. 754, 90 S.E. 911; Linch v. Dewey, 175 N.C. 152, 95 S.E. 94; Thompson v. Oil Co., 177 N.C. 279, 98 S.E. 712; Beal v. Coal Co., 186 N.C. 754, 120 S.E. 333; Thomas v. Lawrence, 189 N.C. 521, 127 S.E. 585; Robinson v. Ivey, 193 N.C. 812, 138 S.E. 173; Ledford v. Power Co., 194 N.C. 98, 138 S.E. 424; Smith v. Ritch, 196 N.C. 72, 144 S.E. 537.

In Seaboard A. L. R. Co. v. Horton, 233 U.S. at page 501, 34 S.Ct. 639, 58 L.Ed. 1062, L. R. A. 1915C, 1, reversing this court (162 N.C. 424, 78 S.E. 494), it is said:

"The common-law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employees is to see that ordinary care and prudence are exercised, to the end that the place in which the work is to be performed and the tools and appliances of the work may be safe for the workmen."

It is the duty of the employer, in the exercise of ordinary care, to furnish an employee with a reasonably safe place to work. This is especially so where the place is more or less dangerous. The employer is not an insurer of the employee's safety. Before directing an employee to work in a place of more or less danger, it is the duty of the employer to use due care to see that the place is reasonably safe for the employee to perform his work. To do this, it is the duty of the employer to use such means and methods that are approved and in general use at a place of like kind and character.

The witness Fisher Holmes was recalled by plaintiff and, without objection, testified as follows:

"I

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