United Coal Mining Company v. Daugherty

• Decision Date: 21 November 1911
• Docket Number: 7,329
• Citation: 96 N.E. 477,51 Ind.App. 165
• Parties: UNITED COAL MINING COMPANY v. DAUGHERTY
• Court: Indiana Appellate Court

96 N.E. 477

51 Ind.App. 165

UNITED COAL MINING COMPANY v. DAUGHERTY

No. 7,329

Court of Appeals of Indiana

November 21, 1911

Rehearing denied February 2, 1912. Transfer denied July 5 1912.

From Parke Circuit Court; Gould G. Rheuby, Judge.

Action by John P. Daugherty against the United Coal Mining Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

White & White, and Jump, Cooper & Bogart, for appellant.

Maxwell & McFadden, for appellee.

OPINION

IBACH, J.

Common-law action by appellee to recover damages for personal injuries sustained while employed in appellant's mine, and alleged to have been caused by appellant's negligence in failing properly to support and prop a certain loose rock in the roof of the mine above appellee's working place. Trial by jury resulted in judgment for appellee. The errors assigned and discussed arise on the motion for a new trial.

It is properly assigned as error that the verdict of the jury is not supported by the evidence. All the testimony in the case was given by appellee's witnesses, who were himself, his father, who was employed in the same mine, his wife, his physician, and William Dutell, who was working with him at the time of his injury. It appears from the evidence that appellee, a coal miner of about ten years' experience, had been for a year employed by appellant to "pull pillars", that is, before the final abandonment of the mine to remove the pillars of coal left to support the roof along entries and between them and other workings, and for two weeks he had been working at such labor with Dutell. Appellee was absent from the mine on the day before his injury, and on that day Dutell shot down from a certain pillar onto the floor of the mine a pile of coal four feet deep at the deepest point, and diminishing in thickness to six inches, which he left in that condition over night. On the day of the injury, when appellee and Dutell came to work in the morning, they found that a loose rock in the roof of the mine extended across the car track, which passed near the pillar and beyond it four or five feet immediately over the pile of coal which Dutell had shot down the day before. Appellee asked the day man to take down the rock. Instead of doing so, he placed some timbers under it, three on one side of the track, and two on the other. After the props were set four or five feet of the rock projected beyond the timbers and overhung the pile of coal. Just as the day man had finished setting the props, he said to appellee and Dutell: "Boys, I think that is all right." After working at another place near by until 2 p. m., appellee and Dutell went to work shoveling the coal that was under the loose rock into cars, which was a part of the work they were employed to do. When they had worked about an hour, the rock broke off near the timbers, and without warning fell upon appellee, breaking his leg and otherwise injuring him. The coal vein was about four or five feet in thickness, and appellee, who was a man five feet nine inches in height, could not stand erect, and was stooped over shoveling when the rock fell. The piece which fell was about five or six feet long, and four or five feet in width, six inches in thickness next to the timbers, at the place where it broke, and tapering to a feather edge. Appellee's father, an experienced miner, testified that to have propped the rock properly, two more props should have been placed under the projecting end, and that these could have been placed there with the pile of coal underneath. But appellee and Dutell both testified that no more props could have been placed there without removing coal from underneath. Dutell testified that one could see that the rock was loose, that the end of it swagged down from the roof a little, but it seemed to be thin, and there were plenty of timbers, such as are used for propping, lying near. Appellee testified that he made no examination of the rock before going to work under it, beyond looking at it, saying that "you can't examine a rock just with your eyes". He also stated that he had a light, and that with the light he could have seen the condition of the roof.

As there is conflicting testimony on the subject of appellant's negligence in its manner of propping the rock, into that question we cannot enter, and since there is some evidence tending to show that appellant was negligent, so far as the present appeal is concerned we must regard that fact as conclusively found against appellant by the verdict of the jury.

But appellant contends that the following uncontradicted facts brought out by the evidence show that appellee assumed the risk. He knew that the rock had been loose, for he told the day man to take it down and clean it. He knew that the day man had not done so, but, instead, had propped it with timbers. When he went to work under the rock, he made no examination beyond casually looking at it, although by looking he could have seen that the rock was loose, and although, from the situation in which he worked, the rock being not more than five feet from the floor, it would have been easy to have tested it otherwise than merely with his eyes. So appellant claims the evidence brings out such a state of facts that appellee must have known of the danger if he had exercised ordinary care and prudence.

The present case comes within the rule that "a servant has the right to rely on assurances that defects which he has complained of have been remedied, and is entitled to recover for injuries caused by the failure to repair as alleged unless the defects are such as to be apparent to one in the use of ordinary care." 20 Am. and Eng. Ency. Law 130.

In 4 Thompson, Negligence § 4665, the author, while discussing assumption of risk, states the rule thus: "If the servant complains to the master, or to the superintendent or other representative of the master, that a given place, machine or appliance is defective and dangerous, and the latter undertakes to repair the defect so as to make it safe, and assures the servant that he has done so, it is not negligence, as matter of law, for the servant to continue to work as before, though it afterwards turns out that the repairs were such as to not make it safe." This principle has been held in the following cases: Kerrigan v. Chicago, etc., R. Co. (1902), 86 Minn. 407, 90 N.W. 976; Rogers v. Chicago, etc., R. Co. (1896), 65 Minn. 308, 67 N.W. 1003; Nelson v. St. Paul Plow Works (1894), 57 Minn. 43, 58 N.W. 868; Gulf, etc., R. Co. v. Brentford (1891), 79 Tex. 619, 15 S.W. 561, 23 Am. St. 377; Atchison, etc., R. Co. v. McKee (1887), 37 Kan. 592, 15 P. 484; Connolly v. St. Joseph, etc., Print. Co. (1902), 166 Mo. 447, 66 S.W. 268; Indiana Iron Co. v. Cray (1898), 19 Ind.App. 565, 48 N.E. 803.

Applying this rule to the present case, it appears that when the day man had finished his repairs and notified appellee of such fact, he had a right to rely on the place being reasonably safe, and did not assume the risk occasioned by the defective repairs, unless the danger from such was apparent to one in the exercise of ordinary care. In other words, the fact that he had known that the place was dangerous before the repairs were made did not cast on him any duty to make a more thorough investigation of his place of work than if he had just entered the mine to work, with no knowledge of the previous dangerous condition. Neither did the fact that the master had repaired the place assure appellee that it was absolutely safe, but only that it was reasonably safe, nor did it in any way lessen appellee's assumption of obvious dangers. Appellee was under no duty to make a critical inspection. He had been told that the repairs were finished by the one whose duty it was properly to make such repairs. He made an ordinary inspection of the place, and he could see that the rock was propped; and though he could see that a part of it had separated somewhat from the roof, at that point it appeared to be of little thickness. Such appearance would not necessarily indicate...