Western Coal & Mining Co. v. Moore

• Decision Date: 31 October 1910
• Citation: 131 S.W. 960,96 Ark. 206
• Parties: WESTERN COAL & MINING COMPANY v. MOORE
• Court: Arkansas Supreme Court

131 S.W. 960

96 Ark. 206

WESTERN COAL & MINING COMPANY v. MOORE

Supreme Court of Arkansas

October 31, 1910

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge reversed.

Judgment reversed and cause remanded for new trial.

Ira D Oglesby, for appellant.

1. The testimony showed that the accident occurred by reason of one of the props being knocked down by a lump of coal on a car striking. Appellee is bound by the allegation of negligence specifically stated in his complaint. 127 S.W. 603. The negligence alleged is not sustained by the proof.

2. There was evidence to sustain instructions 9, 10, 11 and 12 requested by appellant, and they should have been given. It is error to refuse to give a specific instruction clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given. 82 Ark. 499.

Sam R. Chew, for appellee.

1. The proof fully sustains the verdict both as to the fact of negligence and the allegations of negligence specifically alleged.

2. Considering the instructions as a whole, they were fair to both parties, and are sustained by former decisions of this court. 44 Ark. 555; Id. 524; 51 Ark. 467; 48 Ark. 333; 77 Ark. 1; Id. 367; Id. 556. The modification of instruction No. 3 was warranted by the doctrine announced in 77 Ark. 367. The principles of law embodied in instructions requested by appellant are covered by those given. As to instructions 8 to 12 inclusive, there was no proof on which to predicate them. The proof shows positive knowledge on the part of appellant of the condition of the rock. Upon this proof, and the whole record, the verdict is right, and the judgment should be affirmed, even if error may have occurred in giving or refusing instructions. 10 Ark. 9; Id. 53; 4 Ark. 525; 26 Ark. 373; 64 Ark. 238; 72 Ark. 623.

OPINION

HART, J.

Idus Moore recovered judgment against the Western Coal & Mining Company for injuries sustained by him in the defendant's coal mine. The plaintiff was a driver boss for defendant, and was injured by a fall of a rock while riding upon a pit car being drawn over the track in one of the entries of the mine. The negligence alleged in the complaint is as follows:

"That said rock or stone in the roof or top of said mine and entry required props to be placed under it so as to keep said rock in place in said top or roof and prevent same from falling from said top or roof; that the defendant neglected, failed and refused to put a sufficient number of props under said rock or stone to hold it and keep it from falling; that it only kept two props under said rock or stone, and that these props were too weak and unsound to support and keep said rock from falling; that by reason of the weakness and unsoundness of said props the said rock or stone through the weight crushed and broke said props, thereby allowing same to fall as aforesaid and injure plaintiff as aforesaid; and plaintiff says that the defendant knew of said carelessness and negligence and wrongful management, or by the exercise of ordinary care and caution upon its part could have known of said carelessness and negligence and wrongful management."

According to his testimony, the plaintiff was injured on December 29, 1908, while discharging his duties as boss driver in defendant's coal mines. He said that his duties as boss driver were to take charge of the haulage of coal, and of the drivers, mules and cars engaged in getting out the same; that he had nothing to do with the roof props, but that it was the duty of the pit boss or his assistant to inspect and look after these. The plaintiff was knocked senseless, and did not remember any of the circumstances attending the injury; but other witnesses for him testified that he was found on a loaded coal car, which was being drawn along the entry, and that he was pinned down and crushed by a rock which had fallen from the roof of the entry; that it was about two and a half feet from the roof of the entry to the top of the car where plaintiff was found; that the rock was about nine feet wide, eight feet long and averaged six inches thick. The rock extended across the roof. Under the rock was found one small prop, which was about five inches thick and about four and a half or five feet long. It had been cut about half in two where the cars had hit it. The rock before it fell rested upon two props and the "gob," which is described to be a pile of slate and other waste from the mines.

One of the plaintiff's witnesses, on cross examination, stated that there was a prop on each side of the rock and one in the center. He also testified that he had made complaint to the pit boss about the dangerous condition of the rock in question, and that the pit boss had promised to have the defect in the props repaired, but that he had not done so. This complaint was made about two and a half months before the accident happened.

On behalf of the defendant, William Powell testified as follows:

"That at the time plaintiff was injured he was a driver in defendant's mine, pulling a loaded trip along said entry, the plaintiff being on one of the loaded cars; that no other person was present at the time of the accident except plaintiff and himself. The plaintiff was injured by a rock falling upon him, which fall was caused by one of the props being knocked down by a lump of coal on one of the cars projecting over the side of the car; that one of the loaded cars of coal struck one of the props above stated and knocked it out, which caused the rock to fall and injure plaintiff; that the props under the rock had been there for some time, and the cars had all times

prior to this safely passed the props, there being sufficient room between the loaded cars and the props; that he passed under the rock which fell many times during the day with loaded and empty cars; had occasion to observe the condition of the rock and of the props, and at no time saw any evidence of the rock being loose or that the props were in any way weak, unsound or insufficient to securely hold said rock and support the roof, and could have done so if this condition existed.

"The plaintiff was boss driver in defendant's mine at the time, and his duties carried him under the place where the accident occurred very frequently, and it was a part of plaintiff's duty to notice the condition of the roof and of the props sustaining same; and, if any part of the roof became loose or gave any evidence of falling, or if the props were insufficient, either as to size or number, it was plaintiff's duty to report this condition to the pit boss and have the rock secured. That he is not in the employ of defendant, or in any way interested in this suit."

The defendant also adduced other evidence tending to show that it was the duty of the boss driver to look after the entries and track; and if it is out of order or a rock found to be dangerous for drivers to pass under, it is his duty to make it safe or inform the mine foreman, so that he may do so.

The counsel for the defendant assigns as error the action of the court in giving over his objections the following instruction:

"8. If plaintiff knew of the defective and dangerous condition of the rock in question, if it was defective and dangerous, or as a reasonable, prudent and careful man ought to have known it and appreciated the danger to himself therefrom, and yet went under or near the rock, he assumed the risk of injury, and can not recover. But if he knew, or ought to have known, that the rock was in a dangerous condition, if it was, and yet did not appreciate the danger to himself therefrom, he did not assume the danger himself, and is not barred from recovering by reason of assuming the risk."

Counsel for defendant contends that the error in the instruction is in the words, "and yet did not appreciate the danger to himself therefrom." He urged that if it was proved that the plaintiff knew of the dangerous condition of the rock in question, it could not be said that he did...