Wellston Coal Co. v. Smith
| Decision Date | 25 June 1901 |
| Citation | 61 N.E. 143,65 Ohio St. 70 |
| Parties | WELLSTON COAL CO. v. SMITH. |
| Court | Ohio Supreme Court |
Error to circuit court, Jackson county.
Action by Frank Smith against the Wellston Coal Company. Judgment for defendant was reversed in the circuit court, and it brings error. Judgment of circuit court affirmed.
The coal company is a corporation owning and operating a coal mine, and has in its employ what is known as a bank boss or mine boss, and employed many men to operate its mine, one being Frank Smith, the defendant in error. There is an entry or passageway into the mine, and Mr. Smith was assigned by the mine boss to work in a room of the mine adjoining this entry. About October, 1895, he was employed by said company as a miner, and on November 6, 1896, he claims to have drilled two holes into the face of the coal and charged them with powder, and fired one off, and then returned and fired the fuse of the other, and ran into the entry to a place about 60 feet from the fuse, when a part of the roof of the entry fell upon him before this last shot was discharged, and he was severely injured. He sued the coal company greatly out of repair and dangerous in his petition, that the roof of the entry became greatly out of repair and dangerous several months before his injury, by reason of a large, heavy piece of slate becoming loose and liable to fall; that the condition of the roof of the entry was well known to the company, its agents and servants who were his superiors, and who were in charge and control of the entry; and that the condition of the entry could have been known to the company its said agents and servants, by the exercise of reasonable care, prudence, and caution; and that the condition of the roof of the entry was unknown to him, and could not have been known to him by the exercise of ordinary care, prudence, and caution, in time to have prevented his injury; and that he did not have equal means with the company of knowing the unsafe and dangerous condition of the roof of the entry. He further avers that the company negligently and carelessly failed and refused to repair the roof of the entry, and that his injury was directly caused by the negligence of the company in so permitting the said roof to so become and remain out of repair, without warning to him of its dangerous condition, and that he was without fault or negligence in the matter. The answer admits the corporate character of the company, that it was operating the coal mine, that it employed more than twenty-five miners, that Smith was so employed and assigned to a room to work and had to pass through the entry, and was injured in the mine at the date named; and denies all and singular the other allegations of the petition, and then denies some of the allegations specially, but these special denials are not broader than the general denial. The answer further pleads contributory negligence of Smith in this: that ‘ without making a cutting or ‘ bearing in’ of the coal in his said room, he drilled a hole of the diameter of more than two inches, and the depth of seven feet, into the face of the coal, and placed therein a great quantity, to wit, four pounds or more, of blasting powder, tamped it, and, after firing the fuse, went a short distance, and not to exceed 60 feet away, and stopped to await the result of the shot, and defendant says that the injury to plaintiff, if any he received, was the direct result of the explosion of said shot, which took place immediately before plaintiff's alleged injury and the concussion from which caused said slate to fall upon plaintiff, without any wrong, fault, or negligence of this defendant, but solely because and on account of the carelessness, negligence, and want of caution of plaintiff in putting in said shot to the depth and in the manner hereinbefore alleged, and using said very great and excessive amount of powder therein, and failing and neglecting to go far enough away, and staying within the said short distance from said shot. Defendant further says that if said slate was loose prior to the date of its alleged fall, it had no knowledge thereof, and the same was caused by plaintiff and others, coservants with him, in theretofore using an excessive amount of powder in shooting said coal from the solid, and without making any cutting or ‘ bearing in,’ and thus causing a greater concussion from the shooting of said coal than was necessary, and which could easily be avoided by the use of less powder and the exercise of more labor by plaintiff and his said coservants, all of which plaintiff knew and in which he participated.' The reply is in legal effect a general denial of the answer. Upon the trial to a jury the following admission was made and carried into the record as an agreement between the parties ‘ That, at and before the date of the injury to said Smith, defendant had in its employ at all times a sufficient number of careful and competent persons, whose duty it was to look after the safety of all entries in its mine, including the entry in which plaintiff was injured.’
The jury brought in a verdict in favor of the company. A motion for a new trial was overruled, and judgment entered upon the verdict, to all of which proper exceptions were saved. The circuit court reversed the judgment of the common pleas, for the following reasons, as shown by its judgment of reversal in describing the character or amount of contributory negligence that would defeat a recovery. Third. The court erred in refusing to give the fourth special charge as requested by the plaintiff below. Fourth. The court erred in giving special charges numbered 8, 10, 12, 17, and 2a, as requested by the defendant below. Thereupon the company filed its petition in error in this court seeking to reverse the judgment of the circuit court, and asking an affirmance of the judgment of the common pleas.
It is the duty of a miner, as to entries for the ingress and egress of those employed, to use ordinary care for his own safety in view of what he knows or ought to know as to the condition of such entries; and he ought to know every fact which he would know if he exercised ordinary care to keep himself informed as to matters concerning which it is his duty to inquire in the employment in which he is engaged.
1. A mine boss who has control of a mine, with power to hire and discharge employés, stands for and in place of the owner or operator of such mine as to matters between such employés and owner or operator in the operation of such mine, and the owner or operator is chargeable with whatever such boss knows or ought to know in the operation of such mine.
2. Such mine boss ought to know every fact which he would know if he used ordinary care and diligence in performing his duties in the operation of such mine.
3. Where such mine boss, instead of performing his duties in and about the operation of such mine himself, enjoins the performance of such duties upon a miner in his employ in such mine, such miner, as to the performance of such duties, is not the fellow servant of other miners, but, as to them, stands in the same relation as the mine boss, and the mine boss is chargeable with whatever notice such miner has or ought to have while so performing the duties of such boss.
4. In the business of mining coal, it is the duty of the owner or operator of a mine to furnish reasonably safe entries for the ingress and egress of those employed in such mine, and to keep such entries in a reasonably safe condition, and the miners may rely and presume that this duty has been properly performed.
5. It is the duty of a miner, as to such entries, to use ordinary care for his own safety, in view of what he knows or ought to know as to the condition of such entries; and he ought to know every fact which he would know if he exercised ordinary care to keep himself informed as to matters concerning which it is his duty to inquire in the employment in which he is engaged.
J. M. McGillivray, for plaintiff in error.
Powell & Eubanks and C. C. McCormick, for defendant in error.
BURKET, J. (after stating the facts).
The coal company operated its mine by means of a mine boss, who had authority to hire and discharge employés. In the operation of a coal mine, such a mine boss stands for and in place of the company, and his acts and omissions in the operation of the mine are the acts and omissions of the corporation. He is not a fellow servant with the miners employed by him. And, if he directs one of the miners under his employ to perform some of the duties of the mine boss such miner, while so performing such duties, is not the fellow servant of the other miners, but, while not so performing the duties of the mine boss, he would be such fellow servant. The mine boss cannot delegate his duties to a miner under his employ, so as to relieve the company from responsibility for negligence in the discharge of the duties of the mine boss, whether such negligence arises from the acts or omissions of the mine boss, or of some miner under his employ, and by him directed to perform the duties of such boss. The entry in which Mr. Smith was injured was not a room that he was required to keep in a safe condition himself, as was the case in Mining Co. v. Clay, 51 Ohio St. 542, 38 N.E. 610; but, on the contrary, the entry was a place furnished to the miners by the company, through its mine boss, and the duty devolved...
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Wellston Coal Co. v. Smith
...65 Ohio St. 7061 N.E. 143WELLSTON COAL CO.v.SMITH.Supreme Court of Ohio.June 25, Error ti circuit court, Jackson county. Action by Frank Smith against the Wellston Coal Company. Judgment for defendant was reversed in the circuit court, and it brings error. Judgment of circuit court affirmed......