Taylor v. Star Coal Co.

• Decision Date: 15 December 1899
• Court: Iowa Supreme Court
• Parties: TAYLOR v. STAR COAL CO.

110 Iowa 40

81 N.W. 249

TAYLOR

v.STAR COAL CO.

Supreme Court of Iowa.

Dec. 15, 1899.

Appeal from district court, Appanoose county; Frank W. Eichelberger, Judge.

Action at law to recover damages for injuries sustained by Phillip Swab, due to the fall of a part of a roof in defendant's coal mine. After the case was tried in the court below, Swab died, and his administrator has been substituted as plaintiff. Defendant filed a general denial, and also pleaded that the injury occurred in a double room or long wall, and not in an entry which it was defendant's duty to maintain. Some other issues were tendered, which will be referred to in the body of the opinion. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Affirmed.Claude R. Porter and George D. Porter, for appellant.

C. F. Howell, for appellee.

DEEMER, J.

After the evidence was fully adduced, but before argument to the jury, plaintiff was permitted to amend his petition, charging that he made complaint of the condition of the roof to the defendant's superintendent, and asked that the same be taken down, and that the superintendent then and there promised to make the necessary repairs, and directed plaintiff to continue in his work. He also pleaded some other facts tending to show his freedom from contributory negligence. Defendant moved to strike the amendment because filed out of time, and because it tendered a new issue. This motion was overruled, and an assignment of error is based thereon. The matter of allowing amendments rests within the sound discretion of the trial court, and that discretion is rarely interfered with, unless some prejudice appears. The amendment simply conformed the pleadings to the proof that had already been offered, and defendant did not ask to reopen the case, for a postponement, or for a continuance, that he might present additional evidence bearing on the issue thus tendered. It is apparent that the parties had fully covered the ground before the amendment was filed. Hence no possible prejudice resulted. There was no error in the ruling.

2. Evidence was adduced over defendant's objections tending to show the custom, in the district where defendant's mine was located, with reference to whose duty it was to maintain and sustain the roof and sides of entries in mines; as to the custom when a mining company has been notified of defects in the roofs of its mines; and as to the difference, if any, in custom and usage respecting the responsibility of the company for roofs in entries and in rooms. These witnesses testified that it was the custom of the companies in this mining district to look after the roofs in the entries, and that the term “entry” meant a passageway high enough so that mules could take the small cars through. Some of them testified that by the same custom the companies were not expected to look after the roof in the rooms where the miners worked until they were notified of some defects therein. There was evidence tending to show that, when injured, Swab was engaged in work in a double header, or entry, or was removing coal or other material for the purpose of making an entry. Now, while it is almost universally held that evidence of custom is not admissible for the purpose of excusing negligence, yet it is admissible in certain cases to prove what is negligence. In the case before us the general rule, no doubt, is that the master must provide the servant with a safe place to work; but, as the servant is from time to time making that place for himself, the law does not fix the exact time when his duty to look after himself ceases, and that of the master begins. Evidence as to the usage or custom among mines in that particular district with reference to the time when the duty of the master respecting the care of the roof begins was properly admitted. Until a duty arose with respect to the roof, there could be no negligence on the part of the master; and, as the law does not attempt to fix the exact period when that duty commenced, evidence as to custom was clearly admissible. Bergguist v. Iron Co. (Minn.) 52 N. W. 137;Whitsett v. Railroad Co., 67 Iowa, 155, 25 N. W. 104;Jeffrey v. Railroad Co., 56 Iowa, 546, 9 N. W. 884;Coates v. Railway Co., 62 Iowa, 491, 17 N. W. 760;Hamilton v. Railroad Co., 36 Iowa, 36;Couch v. Coal Co., 46 Iowa, 17;McKean v. Railroad Co., 55 Iowa, 192, 7 N. W. 505; Bailey, Mast. Liab. p. 31. To a witness of plaintiff a hypothetical state of facts was submitted, and he was asked whether, in view of the custom and usage in mines, a miner would naturally expect that he was safe from the fall of the roof, and would feel that he was running no risk in standing where it is claimed plaintiff did. In answer, the witness said: “No, sir; he would not feel that he was running any risk. I would not think that a miner standing three and one-half feet from where it seemed to end would naturally expect it to fall three and a half further on, where it would be.” This is, no doubt, a border-line question; for it is generally held that a witness cannot usurp the functions of the jury, and declare the defendant negligent, or the plaintiff free from contributory negligence. The customary method of doing the work in which plaintiff is engaged is a proper matter of inquiry, however. McKean v. Railroad Co., supra; Hamilton v. Railroad Co., supra. The tendency of roofs to fall, and the danger to be apprehended therefrom, is not a matter of common knowledge. Only those familiar with such matters know the dangers to be apprehended, and we are of opinion that it was proper for plaintiff to show the usual and customary test of safety. See the Bergguist Case, supra. While the question was not very happily framed, we think, in view of the answer given, it did no more than call for the opinion of the witness as to whether the roof was likely to break. We are not to be understood as approving a rule which will substitute the judgment or opinion of a witness for that of the jury. The question propounded did not of necessity call for such judgment, and the answer clearly indicated that the witness was simply giving his opinion as to whether a certain strata of rock or slate was likely to fall, and as to the usual and customary test of safety. As sustaining the rule announced, see Betts v. Railway Co., 92 Iowa, 343, 60 N. W. 623, 26 L. R. A. 248.

3. Plaintiff was asked whether he would have gone to work in the mine, knowing that some of the roof was loose, if the defendant's superintendent had not promised to fix it; and he answered that he would not. This evidence is proper, in view of the issues tendered by the amendment to the petition. The...