WESTERN AMERICAN CO. [*1, Green v. Western American Co.

• Decision Date: 25 September 1902
• Citation: 70 P. 310,30 Wash. 87
• Parties: GREEN v. WESTERN AMERICAN CO. [*1
• Court: Washington Supreme Court

70 P. 310

30 Wash. 87

GREEN v. WESTERN AMERICAN CO. [*1

Supreme Court of Washington

September 25, 1902

Appeal from superior court, Pierce county; W. O. Chapman, Judge.

Action by Andrew Green against the Western American Company. From a judgment for defendant, plaintiff appeals. Reversed.

Govnor Teats, for appellant.

Fogg &amp Fogg, for respondent.

WHITE J.

This is an action for personal injury, brought by Andrew Green, a coal miner, against the Western American Company, owner and operator of the Fairfax mines, Pierce county, Wash. Nonsuit was granted by the court below, and the plaintiff appeals.

There were two general elements of negligence charged in the complaint,--the employment of an incompetent pit boss, and the neglect of the defendant to furnish the plaintiff with timbers to properly timber his working place, as provided by section 3178, Ballinger's Codes & St. The second amended complaint, charging negligence, is as follows 'That some time prior to the 18th day of September, 1900 the defendant employed the plaintiff to mine coal in its mines at Fairfax. After his employment, plaintiff set to work driving a crosscut in said mine, which crosscut was to be driven between two chutes for a distance of about 70 feet. That on or about the ___ day of _____, plaintiff had driven the said crosscut at a distance of about 25 feet, and then and there requested of the pit boss, John Wilson, for timbers to properly prop the same, and quit work because of the lack of timbers to properly timber the said crosscuts so mined by plaintiff. That thereafter the said pit boss caused to be furnished to plaintiff timbers to properly timber and prop said chute for about 20 feet, and the plaintiff proceeded to work, and drove the said crosscut further on towards the chute on the opposite side of the pillar. That, after driving the same a distance of about 18 feet, it became necessary to timber and prop the said crosscut so as to protect plaintiff from falling coal and rock, and there and then requested the pit boss, Wilson, to furnish him with timbers to be used as props to properly secure the workings from caving in; and plaintiff alleges that there was at that time no timbers, or any supply of timbers, in said mines to supply the plaintiff at the entrance of his working place, or at any place where plaintiff could obtain the same, as is required by the laws of the state of Washington. The said Wilson then and there requested the plaintiff to proceed to his working place, stating to the plaintiff that the same was safe, and did not need and require timbers to prop, and requested the plaintiff to continue driving the crosscut until it reached the chute on the other side of the pillar, when the defendant would furnish the plaintiff with timber to properly timber and prop the said crosscut. That plaintiff then and there went back to his place of work, and continued to work until about 1 o'clock on the 18th day of September, 1900, when a rock or block of coal fell, by reason of the lack of timbers and the lack of propping, striking the plaintiff upon his head and back and body, fracturing his spinal column, and maiming and wounding him, so that plaintiff became paralyzed from the pit of his stomach and the lower portions of the bowels and all of the muscles and portions of the body, and limbs below the said point so injured, to wit, the center of the back and the pit of the stomach. Plaintiff alleges that it was the duty of the said pit boss, John Wilson, to furnish the said timbers as herein set out for and on the part of the said company for the purpose of making the places reasonably safe as provided by law; that the plaintiff and other miners in the said mine looked to the said pit boss, John Wilson, for the fulfillment of the said duty to the plaintiff and miners in the operation of the said mine. Plaintiff alleges that the said pit boss, John Wilson, at the time of his employment and at the time of the accident, was an ignorant, incompetent person, totally unfit to act as foreman, or take charge of underground work in a mine; that he had no knowledge of men, and no knowledge of mining, and did not know what was necessary to be done in the operation of the said defendant's mine in order to maintain reasonably safe places under ground for the men under his charge; that the said John Wilson was wholly ignorant of the geological formation of the earth and vein in which defendant's mine was located, and did not know what was necessary to be done in order to have and maintain reasonably safe working places under ground for the plaintiff and operators therein; that the said company knew full well that the said John Wilson was so incompetent and irresponsible at the time of the accident to the plaintiff and for a long time before, but that this plaintiff did not know of said character and incompetency of the said John Wilson; and that the injuries of the said plaintiff are due to the negligence and carelessness of the said defendant in employing the said pit boss and in said defendant's refusing and neglecting to furnish him with the necessary timbers at the entrance of his working place.' Upon these allegations issues were formed, and the cause was tried. At the close of the appellant's testimony a motion for nonsuit was interposed by the respondent, and the motion was sustained. The ruling of the court in this respect is assigned as error.

The evidence discloses that the appellant was a practical and experienced miner. The Fairfax mine consists of three veins, which extend north and south practically, and pitch from 60 to 69 degrees. The entrance is made from the bank of the bluff as it goes out to a river. The coal measures lie about 1,000 feet back from the river, and they run diagonally with the course of the river. The main entry or tunnel starts from the gravel bank near the river, and its main direction is nearly northeast. It is sometimes called east and west by the miners. As one goes into the tunnel, the south would be on the right hand and the north would be on the left of the course. The veins are tapped by a tunnel from beneath, so that when a miner reaches the vein he practically turns around to go up into the working. The following is a diagram of the working:

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The chutes running up into the coal number from the entrance of the tunnel north and south. The first chute on the cut to the left is chute 1 north. The chutes to the right are chutes 1 to 4, inclusive, south. At a distance of 30 feet up from the gangway a counter gangway is driven. The chutes reaching the counter gangway are driven practically at right angles with the gangway, and the chutes extending from the counter gangway up into the coal are driven at an angle from the counter gangway of about 40 to 45 degrees, as is necessary in order to work the mine on account of the pitch of the vein. Crosscut No. 5, between chute No. 1 north and chute No. 1 south, counting from the counter gangway, was the place where Green was injured, and was 230 feet from the counter gangway, which would make it about 260 feet from the main gangway up chute 1 south. The chutes are driven from 3 to 5 feet wide and 5 feet high. The difference in the width is due to the thickness of the vein of coal, being driven up through the coal at an angle. The bottom and top of the coal form the two sides of the chutes. The terms for the rock formation, used in the evidence, are the 'hanging wall' and the 'foot wall.' The top and the bottom of chutes and crosscuts were coal. The reason the rock walls were designated the 'hanging wall' and the 'foot wall' is because of the pitch of the vein. The distance between chutes was generally about 30 feet, but that between chute 1 north and chute 1 south was about 70 feet. The distance between crosscuts was from 30 to 40 feet. The vein of coal pinches out near the surface, and runs into the gravel, which was about 40 feet above the fifth crosscut. As the miners reached the top of the vein, it was found that the coal became softer, and was not solid as below. John Wilson was pit boss. When Green commenced working, he worked in No 1 vein, called the 'BLACKSMITH' VEIN, FIVE DAYS; THEN WENT to work in the third vein, and worked in the crosscuts between chute 1 and chute 2 south. While working there, his timbers were packed to him at the entrance of the chutes below at the intersection of the gangway. He was then sent to work driving crosscut No. 3, between 1 north and 1 south, which was about 70 feet through. He drove that through, and also crosscut No. 4, and while driving those through he was instructed to drive clear through first and timber down afterwards, as the timber came from the chutes north, and he got his timbers for those crosscuts through chute 1. The pit boss told him to drive through and timber back, and that is the way he mined and timbered crosscuts 3 and 4. He then proceeded to drive crosscut 5, and drove about 25 feet, when he called for timbers. Receiving none, he quit,--laid off two days. This was owing to the coal being more or less soft, and he wanting to timber. The boss then told him to go through crosscut 4, and get his timbers in No. 1 chute north. He did so, and timbered up 20 feet in crosscut No. 5. He then proceeded and mined 18 or 20 feet more. The day before the accident, and after firing a shot, toward evening, he came down to the chute, and met Wilson, and requested of Wilson timbers to timber his crosscut up. Wilson told him that he had ordered the timber packers to bring him timbers, but Green 'never got a stick.' Wilson went up into the place, and then came down, and repeated that he had told the timber packer to bring the timbers, and requested Green to drive on through the same as he had the other...