Walsh v. West Coast Coal Mines, Inc., 30525.

• Decision Date: 07 September 1948
• Docket Number: 30525.
• Citation: 31 Wn.2d 396,197 P.2d 233
• Parties: WALSH v. WEST COAST COAL MINES, Inc.
• Court: Washington Supreme Court

197 P.2d 233

31 Wn.2d 396

WALSH v. WEST COAST COAL MINES, Inc.

No. 30525.

Supreme Court of Washington

September 7, 1948

Department 2

Action by Marie C. Walsh, administratrix of the estate of Walter H Walsh, deceased, on behalf of herself and minor children against West Coast Coal Mines, Inc., to recover damages for death of plaintiff's husband resulting from an accident which occurred in defendants' coal mine. From a judgment for plaintiff, the defendant appeals.

Appeal from Superior Court, King County; Howard M Findley, Judge.

Acheson & Smith, of Seattle, for appellant.

Bassett & Geisness and Henry W. Parrott, all of Seattle, for respondent.

STEINERT Justice.

Plaintiff, as administratrix, brought this action on behalf of herself and her minor children to recover damages for the death of her husband, resulting from an accident which occurred in defendant's coal mine and which she alleged was caused by defendant's negligence. In its answer, defendant denied plaintiff's allegations of negligence and, by way of three affirmative defenses, alleged (1) that the deceased was a mere volunteer on its premises at the time he was killed and that the dangerous conditions then and there existing were fully known to and appreciated by him; (2) that his death was caused by his contributory negligence; and (3) that he voluntarily assumed the risks incident to his presence upon the premises under the existing conditions. Plaintiff demurred to the third affirmative defense. The trial court sustained the demurrer as to the categorical allegation of assumption of risk by the deceased, but overruled the demurrer as to the remainder of the pleaded defense, allowing the facts therein stated to stand as a plea of contributory negligence. The cause was tried to a jury and, at the conclusion of all the evidence, defendant moved for a directed verdict in its favor. The motion was denied, and the cause was submitted to the jury, which returned a verdict for plaintiff. Defendant's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied, and judgment was thereupon entered on the verdict. Defendant appealed.

The facts with reference to the accident which resulted in the death of the deceased are as follows: Appellant, West Coast Coal Mines, Inc., a corporation, owned and operated a coal mine, known as the Glen Echo Mine, situated near Bellingham, in Whatcom county. The operation of the mine was conducted under the general supervision and management of appellant's president, Joseph A. Jussel. The company employed as foreman one Gomer Owens, who had direct charge of the work done in and about the mine. The deceased, Walter H. Walsh, at and prior to the time of his death, was a Federal coal mine inspector of the U.S. Bureau of Mines. His duties involved the inspection of coal mines, observing and reporting hazardous conditions therein, and recommending safety measures. His territory covered three states, including Washington. Respondent, Marie C. Walsh, is the widow of the deceased and the mother of his seven children, six of whom were minors at the times involved in this action.

Sometime prior to June 30, 1945, it became apparent to the appellant company that, in order to continue its mining operations at the Glen Echo Mine, it would be necessary to recondition the main slope, or opening into the mine. It appears that at a point approximately forty feet within the portal, or entrance into the mine, the supporting timbers had become decayed and were being squeezed inward toward the center of the main slope. This so narrowed the width of the passageway that appellant's coal cars, which ran along a track on the floor of this slope, were scraping against and cutting into the timbers, and by reason thereof were barely able to pass that point. Appellant through its officers therefore decided to remove these old timbers, widen the passageway, and then reenforce the slope with new timbers and concrete.

Under the direction of its foreman, Gomer Owens, appellant commenced these repairs by pulling out the old timbers with a hoist, but without first providing the slope with any temporary support, such as forepoling, raising the lagging, or putting in some other kind of sustaining prop, until the permanent support could be set in place.

The removal of the old timbers and the absence of any temporary supports weakened the main slope to such an extent that on June 30th or July 1st, 1945, a 'cave-in' of dirt, debris, and muck occurred about forty feet from the portal, at the place where the old timbers had been removed, thereby blocking the passageway of the slope. As it was necessary to remove the matter that had thus caved in Before the reconditioning work could continue, appellant set about removing this mass of debris.

One of the problems involved in digging out a cave-in occurring in a mine is that of preventing the fall of other and further debris after the original matter has been removed from the site where the cave-in occurred. As such new matter usually proceeds from the roof, or top, of the slope, a standard method of control and support is to brace the roof at one end of the accumulated debris; as the debris is then cleared away at this and successive points, the brace above is extended forward progressively until the entire slope is completely cleared of the obstruction. This method, known as forepoling, prevents further cave-ins and sustains the roof of the slope until permanent supports can be set in place.

Appellant's foreman attempted to forepole through the mass of fallen debris which blocked the slope. He first tried to forepole with timbers, and then with steel rails. His attempts proved unsuccessful, however, although experts testified that had the work been done in a proper manner it would have been successful and would have prevented further debris from falling into the slope.

Appellant thereupon concluded to remove the clogging matter by excavating the earth from the ground surface above the mine down to and through the obstructed slope. To accomplish this end, a clamshell, dirt-removing machine was employed. By this method, appellant was able to dig downward from the top and eventually remove the muck and debris that had fallen into the main slope. This operation, however, left a conical-shaped hole, about seventy-five feet deep, extending from the surface of the ground above the mine to the roof of the slope below. This hole was about sixteen feet by twenty feet in size at the top where it met the ground surface, and about eight feet by ten feet at the bottom where it entered the slope. The sides were almost vertical and were allowed by appellant to remain in that condition. Overhanging trees, dirt, and debris were also left, and allowed to remain, around and about the top of the hole.

Expert witnesses testified that these conditions were very dangerous, and that proper safety procedure required that the sides of the hole be cut back to an angle of about forty-five degrees, or the angle of repose, and that the sides then be timbered.

Appellant did dynamite parts of the overhand, but not sufficiently to change the situation materially.

This excavation having been completed and the debris from the bottom of the slope having been cleared away, appellant set about constructing a steel mat, or lacework, which was to be laid flat at the lower end of the hole, above the roof of the slope, and covered with timbers and dirt. The purpose of this mat was to act as a stopper, or plug, to prevent dirt and other foreign matter from entering the main slope through the hole above it. The mat was about twelve feet by fifteen feet in size and was constructed of sixty-pound steel rails placed lengthwise and sixteen-pound steel rails spot-welded crosswise, forming a web, and three-inch planking placed between and upon the rails. The steel rails were obtained from a junk yard.

The idea of the construction and use of this mat was obtained by Owens, the foreman, from a study of various publications issued by the Bureau of Mines and other similar authorities. The evidence indicates that some of the rails used by appellant in constructing the mat had become crystallized, although this fact was not obvious upon ocular examination. When the mat was completed, it was to be put in place by resting it upon hitches, or notches, cut into the sides, or walls, of the hole.

On the evening of July 19, 1945, which was about nineteen days after the cave-in above described, Walter H. Walsh, now deceased, having heard of that occurrence, visited the Glen Echo mine, in company with Charles B. Jacobs, a safety inspector for the state department of labor and industries. The evidence discloses, without dispute, that Mr. Walsh was a very fine coal mine inspector, had had over thirty years of experience in coal mining operations, and had held responsible positions involving coal mine inspection in various parts of the country.

Upon arrival at the coal mine, Walsh and Jacobs consulted with Jussel, appellant's president, and Owens, its foreman, and then proceeded to inspect the premises, including the main slope, the conical-shaped hole above it, the top and the side walls of the hole, and, in general, the work that had been done as heretofore described.

At this time, the work of excavating the hole had been completed, the slope below had been cleared, and appellant's employees were engaged in constructing the mat and cutting the hitches into which it was to be placed. It was raining at the time the inspection was being made, and the two inspectors observed that water was running down along one of the walls of the hole onto the floor of the slope, and that chunks of sloughage of from eight to twelve pounds in...