Western Coal & Mining Company v. Buchanan

• Decision Date: 09 November 1908
• Citation: 114 S.W. 694,88 Ark. 7
• Parties: WESTERN COAL & MINING COMPANY v. BUCHANAN
• Court: Arkansas Supreme Court

114 S.W. 694

88 Ark. 7

WESTERN COAL & MINING COMPANY v. BUCHANAN

Supreme Court of Arkansas

November 9, 1908

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

Judgment affirmed.

Ira D Oglesby, for appellant.

1. The question of inspection and what Korkille said and did with regard thereto was not an issue, and it was error to admit testimony and to instruct the jury on that point; also to refuse the instructions asked by appellant touching that question. 90 S.W. 300. The court's instruction clearly made the negligent inspection an issue and authorized the jury to base its verdict upon that ground of negligence. Not only should such instructions requested by appellant eliminating the question of inspection not have been given but the court should have given improper or negligent inspection made by Korkille as negligence on which recovery could be based.

2. The 9th instruction requested by appellant should have been given. There was testimony to the effect that the facts set out in this instruction were all that took place with regard to furnishing the safety lamp and the purpose for which furnished. If it was furnished under the conditions recited, then, as a matter of law, no authority was conferred upon Korkille to act as fire boss; he was not a vice principal, nor authorized to make inspection, and his negligence was not that of appellant.

Sam R. Chew, for appellee.

1. It was appellant's duty to furnish a reasonably safe place in which to work, and to exercise reasonable care to see that it was kept in that condition. 48 Ark. 333; 82 Ark. 499. If the allegation of negligent inspection by Korkille was necessary, then the complaint will be treated as amended, so as to include this allegation. The law provides that no variance between allegation and proof will be deemed material, unless the opposite party has been misled thereby. Kirby's Dig. § 6140. The burden would in such case be upon the opposite party to show that he was misled. On former appeal the court found that there were sufficient facts to go to the jury on the theory that the pit-boss delegated to Korkille the duty of inspecting for gas. Appellant was not misled. 82 Ark. 499.

2. The instructions as a whole cover every phase of the case, and correctly state the law applicable to the facts, and all questions raised here were raised on former appeal. Id.

OPINION

BATTLE, J.

This action was brought by J. L. Buchanan against the Western Coal & Mining Company. There have been two trials in the action. In the first the plaintiff recovered judgment, and the defendant appealed to this court, and the judgment was set aside, and the cause was remanded for a new trial. The statement of facts in the case and opinion of the court are reported in 82 Ark. 499 (Western Coal & Mining Co. v. Buchanan). In the second trial the plaintiff again recovered judgment, and the defendant appealed. The main and leading facts shown in the two trials are substantially the same. The statement and opinion in Western Coal & Mining Company v. Buchanan, 82 Ark. 499, 102 S.W. 694, in connection with the facts stated herein, we think, will be sufficient to make this opinion intelligible.

The first question presented by appellant in its brief is as follows: Plaintiff "sought to hold defendant liable on the theory that Korkille was on this occasion fire boss, and as such negligently examined the place where the accident occurred, and as the result of such negligence in examining it pronounced it free of gas, when it was not, by reason of which inspection and assurance of Korkille that the place was free of gas plaintiff entered it with an open light and exploded the gas. Defendant at every stage of the case challenged the right of plaintiff to recover upon this theory of negligence, objected to the testimony when offered in support of same, moved its exclusion at the end of plaintiff's case and at the close of the case, because no such issue was raised by the pleadings. There are no allegations in the complaint authorizing the trial of the issue as to whether Korkille was, for the time being, fire boss, or whether there was negligent inspection of the place where the accident occurred. When defendant challenged the right of plaintiff to inject this issue into the case and protested against the testimony offered in support of it, plaintiff did not ask to amend his complaint, so as to incorporate that issue. Defendant having objected to the testimony at all stages and excepted to the instructions of the court, plaintiff cannot claim that the pleadings can be considered as amended to conform to the testimony. * * * * Defendant had no notice from the complaint that this was an issue, or that it would be called upon to meet such alleged negligence."

The issue here stated by appellant was raised in the first trial by the evidence. Both parties treated it as an...