Western Coal & Mining Company v. Burns

• Decision Date: 22 July 1907
• Parties: WESTERN COAL & MINING COMPANY v. BURNS
• Court: Arkansas Supreme Court

104 S.W. 535

84 Ark. 74

WESTERN COAL & MINING COMPANY v. BURNS

Supreme Court of Arkansas

July 22, 1907

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

Judgment affirmed.

Ira D Oglesby for appellant.

1. The court should have instructed a verdict for the defendant because appellee Luther Burns's own testimony fails to establish the acts complained of, is uncorroborated in this respect, and is, moreover, contradictory and contrary to physical facts; it does not prove any negligence on the part of appellant, and shows that he was at a place where he should not have been. 79 Ark. 608; 3 Am. St. Rep. 632; 34 Ia. 153; 15 S.W. 141.

2. It is also clear from his own testimony, if the defects complained of existed, that Burns knew of the defects, was thoroughly acquainted with every part of the mechanism and appliances, understood and appreciated the danger. He must be held to have assumed the risk, and to have been guilty of contributory negligence, 126 F. 495, 511, 513.

Sam R. Chew, for appellees.

1. Where the master has promised to repair a defect, the servant may rely upon this promise, and may continue in the work, and will not be held to have assumed the risk of injury caused by such defects within such period of time as would be reasonably allowed for its performance, or within any period of time which would not preclude all reasonable expectation that the promise might be kept. 35 Ark. 602; 54 Ark. 289; 1 Shearman & Redfield on Neg. § 215; 49 F. 723; 1 C. C. A. 428; 44 Ill.App. 426; 43 Ia. 362; 14 Am. R. Rep. 575; 85 Mich. 519; 26 N.W. 1086; 82 Ia. 148; 49 N.Y. 521; 43 Ia. 682; 78 N.C. 300; 76 Pa.St. 393; 15 Am. & Eng. R. Cas. 218.

2. The servant will not be held to have assumed the risk of the master's negligence in the discharge of any of the duties he owes to the servant. Before the servant will be held to have assumed the risk, it must be shown that he knew of the master's negligence and realized the danger. 77 Ark. 367; Id. 458.

OPINION

MCCULLOCH, J.

This appeal involves judgments for the recovery of damages in two actions against appellant, Western Coal & Mining Company, one instituted by Luther Burns, a minor, to recover for physical and mental suffering and permanent physical injury resulting from alleged negligence of appellant, and the other instituted by Julia Burns, his mother, to recover for loss of his services during disability, expenses of medical attention, nurse hire, etc., resulting from said alleged negligence. The cases were tried together, and in the first case the judgment was for the sum of $ 1500, and in the second the judgment was for $ 300. Luther Burns was, at the time he received the injuries complained of, a boy fourteen years old, and was employed as a trapper in appellant's coal mine. His duties were to watch the switch on the pit track and to throw the switch for the motor cars passing along the tracks.

The specific acts of negligence set forth in the complaint were "that the defendant allowed the taps or nuts on the bolts on and the switch in said track to become loose; the nuts to fall off of the bolts, and the threads on said bolts to become so worn that they would not hold and retain the nuts or taps on same, so as to hold said switch in a secure and reasonably safe condition; that the latch that held the rails or should have held the rails in said switch in proper position became so loose that it would not remain in proper position, and allowed and permitted the points of the rails in said switch to become so separated that the said motor and cars, in passing over same, would split and mount said rails and become derailed." It is alleged that by reason of these defects the motor and cars, in passing over the switch, left the track and struck and injured Burns.

The switch in question was situated at a point where the pit track connects with the main track and with a track running off into another passageway or entry called the 7th north entry, the switch being placed there so as to shift the motor and cars from the pit track to one of these tracks when desired. The trapper stood at this switch and set it for the motor and cars to go straight on down the main track or into the 7th north entry according to direction. There was a door across the north entry track which was closed when the accident occurred, and about ten feet beyond this door an air course or chamber ran off at right angles from the entry. Burns testified that his instructions were, when he set the switch for cars to pass, to go into this air course and stand until the cars passed. On this occasion a motor with cars attached approached the switch coming down the pit track destined to continue down the main track. Burns testified that he set the switch for the cars to go on down the main track and signalled the motorman accordingly; that, after setting the switch, he went through the door across the north entry and stationed himself back up in the air course, as he was instructed to do. The cars, instead of going straight on down the main track, turned at the switch into the north entry, went through the closed door across the track and in some way struck Burns and injured him. He was found under the motor badly injured. The door was shattered, and some of the cars were piled up on the motor, but the motor was not derailed. Burns testified that, while standing in a stooping position in the air course, he was struck by a board or timber from the shattered door and knocked upon the track, where he was struck and run over by the motor. The principal controversy of fact is whether Burns negligently set the switch for the north entry track, instead of the main track, as he should have done, thereby turning the cars into the north entry, or whether the alleged defective condition of the switch caused it to fail to connect the rails so as to allow the cars to pass on down the main track and to cause them to turn into the north entry.

There was a conflict in the testimony on this point, and, it being sufficient to sustain the finding of the jury, we must treat the question as settled that Burns set the switch properly, and that the defect in the switch caused the cars to turn into the north entry. There was also testimony to the effect that Burns notified appellant's pit boss, who was a vice-principal, of the defective condition of the switch, and that the latter promised to have it repaired, but failed to do so.

Learned counsel for appellant contends with much force that the evidence shows conclusively that Burns could not have been back in the air course where he should have stood after setting the switch, but must have been out on the track or near it when he was injured. If this is found to be true, it precludes recovery, as the employee is bound to obey rules made for his safety and protection, and is guilty of negligence when he fails to do so. It does appear highly improbable that he was back in the air course but he swears positively that he was there, and that he was struck on the head by a piece of plank and knocked into the entry where the motor struck him. He is contradicted by other witnesses who...