Whalen v. Union Pacific Coal Co.
| Decision Date | 04 October 1917 |
| Docket Number | 2984 |
| Citation | 50 Utah 455,168 P. 99 |
| Court | Utah Supreme Court |
| Parties | WHALEN v. UNION PACIFIC COAL CO |
Appeal from District Court, Second District; Hon. N. J. Harris Judge.
Action by Thomas A. Whalen, administrator, against the Union Pacific Coal Company.
Judgment for plaintiff. Defendant appeals.
REVERSED with directions.
Geo. H Smith, J. V. Lyle, B. S. Crow and C. R. Hollingsworth for appellant.
John G Willis, S. T. Corn and Geo. Halverson for respondent.
This is an action by Thomas A. Whalen, as administrator of the estate of Pero Vucovich, against the Union Pacific Coal Company, a Wyoming corporation, hereinafter referred to as company, to recover damages for the death of Vucovich alleged to have been caused by the negligence of the company. A trial was had to a jury in the district court of Weber County, which resulted in a verdict in favor of plaintiff in the sum of $ 2,357.14. To reverse the judgment rendered on the verdict the company prosecutes this appeal.
The facts, briefly stated, are about as follows:
On October 17, 1913, Pero Vucovich was, and for about three years had been, in the employ of the company as a laborer in one of its mines, referred to in the evidence as mine No. 10. This mine consisted of a system of tunnels and subterranean rooms. The company maintained an electric lighting system to illuminate the interior portion of the mine, and to supply electrical power to haul and transport coal from the interior of the mine to the surface. The mine is entered through a tunnel referred to in the evidence as the "main slope." This tunnel has a somewhat steep descent from its portal into the interior of the mine. On its course it is intersected by various tunnels, referred to by the witnesses as "entries." One of these, known as No. 5 or main entry, is nearly level, and is equipped with an electric railway and coal cars. These cars are propelled or drawn by an electric motor with trolley pole attached thereto, and connected with an overhead trolley wire, which is suspended from the roof of the tunnel by uninsulated hangers fastened with screws or blocks of wood in the roof of the tunnel. The equipment is somewhat similar to that of an electric street railway system. The trolley wire was close to the wall and ceiling on the lower side of the entry, and as far away from the men and the cars as it could be placed. It was uninsulated and unguarded, except that at manways or landings, where men are continuously passing to and fro under it, there is a wooden boxing or guard for a distance of ten or twelve feet. The main, or No. 5, entry is a little more than two miles long, and approximately ten feet wide and from six to seven feet high. The height varies with the height or thickness of the vein of coal through which the tunnel passes. This entry is intersected at various points at approximately right angles by other tunnels known as "stopes." These stopes have a gradual pitch or incline, so that, on traveling along No. 5 entry, the intersecting stopes ascend on the one side and descend on the other. The stopes are numbered 1, 2, 3, 4, 5, etc. Coal is mined in the various rooms and chambers connecting with the various stopes that intersect the main, or No. 5, entry, and is transported in cars running on tracks along the stopes to the main, or No. 5, entry. When the cars loaded with coal, ascending or descending the slopes, as the case may be, reach the main entry they are coupled to an electric motor and taken along the almost level track in the entry to the main slope, where they are uncoupled from the motor and fastened to a cable, and by means of a hoist are hauled to the surface, where the coal is unloaded into a tipple and screened.
At the point where the accident in question occurred, and for a considerable distance along the entry in either direction, there is a double track. The floor and roof of the entry slope laterally to a certain extent, because of the tip or incline of the seam of coal through which the entry extends. Where the track is double there is a "high side track" on one side and a "low side track" on the other side of the tunnel or entry. The high track is used as the passageway for the empty cars, and the lower track on the other side of the tunnel or entry is used for the transportation of the loaded cars. The cars are seven feet long, three six inches wide on top, and three feet three inches high above the rails of the track. The distance from the top of the rails to the trolley wire is four feet eight inches. At or near the intersection of No. 5 slope with the main entry, a small tunnel leads off from and parallels the entry in the direction of the main entrance to the mine, and returns to and intersects the main entry a few hundred feet from slope No. 5. This tunnel is referred to in the evidence as "run round." When the motor returning from the main slope with a train of empty cars pulls onto the upper track near slope No. 5, it frequently happens that both tracks are blocked, the upper track with the empty cars attached to the motor and the lower track with loaded cars. On such occurrences the motor is detached from the empty cars, taken through the "run round" and brought upon the main tracks of the entry at the end of the train of cars nearest the mouth of the tunnel, and then is attached to the loaded cars and draws them to the foot of the main slope. The "run round" is a species of switch used for the purpose of transporting the motor from one end of a train of coal cars to the other. The accident in question occurred on the main track, about midway between the points where the terminals of the "run round" intersect the main tracks. Since the installation of the electric railway system in the mine, it has been the custom for the men employed in the interior of the mine, on quitting work at the end of a shift, to assemble at a place selected by the company and wait until the empty cars come in for them, and then board such empty cars and ride to the foot of the main slope, at which point they are transferred to another train of empty cars and hauled to the surface by means of a hoist. The trip on which the men are taken from the interior of the mine to the surface is called the "man trip." At the time of the accident, and prior thereto, there was a manway, free from the dangers incident to trolley wires and moving coal cars, leading from the interior to the surface of the mine, in which the men could walk if they so desired. Eighty-two feet outward from where the accident occurred there is an automatic switch connected with the trolley wire. The switch can be operated by means of a stick of wood or it will operate automatically when the trolley wheel passes over it.
It was customary for the motorman in charge of the man trip, after he brought the cars in from the foot of the main slope and placed them in position for the men to board them, to transfer the motor to the rear end of the train of empty cars by taking it through the "run round," and, if the men remained in the place where they had assembled to wait for the man trip, to walk down to the switch and disconnect the current from the wire extending toward and over the train of empty cars. The men were supposed to remain at the place where they had assembled until this man trip was made up and the signal given by the motorman for them to board the cars, after he had shut off the current from the wire extending to and over the empty cars. The men quite frequently, in fact they generally, boarded the cars before the motorman gave the signal. The reason for this was that when the man trip reached the foot of the main slope it ordinarily required two trips up the slope to convey all the men to the surface. Therefore those who were in the front cars of the man trip would have a better opportunity, on arriving at the foot of the main slope, to get into the cars there and be hauled to the surface on the first trip than the men who were in the rear of the man trip cars.
McCARTY, J. (after stating the facts as above).
The alleged negligence pleaded in the complaint is: (1) That the company maintained unguarded and uninsulated the trolley wire mentioned in the foregoing statement of facts "at a distance of only about five feet and seven inches perpendicularly above, and only about fourteen inches horizontally outside of and away from, said tracks"; (2) that it "failed to maintain a watchman to warn said employees when the current was on the wire, and inform them when it was safe to board the man trip"; (3) that it failed and neglected to turn off the current of electricity from the trolley wire before permitting its employees to board the man trip; (4) that it failed to establish and enforce rules forbidding its employees to board the man trip before the current was turned off. The company denied that it was negligent in any of the particulars alleged in the complaint, and pleaded assumption of risk and negligence on the part of the deceased.
Counsel for respondent contend that when the deceased, Vucovich, quit work on the afternoon of, and just before, the accident in question occurred, the relation of master and servant ceased to exist, for the time being, between him and the company and that, when he boarded the man trip, and at the time he was killed, the relation between him and the company was that of carrier and passenger, and that therefore the assumption of risk rule has no application in this case. We do not agree with counsel. The relation of master and servant continued to exist until the employees boarding the man trip were taken to the surface of the mine, departed from the...
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