Appeal
from Superior Court, Wilkes County; Long, Judge.
Action
by J. L. Whittington, administrator, against the Virginia
Iron, Coal & Coke Company. From a judgment for plaintiff
defendant appeals. No error.
Negligence
may be proven by circumstantial evidence; and, if the facts
proved render it probable that defendant violated its duty
it is for the jury to decide.
This
action is for the alleged negligent killing of
plaintiff's intestate while working in defendant
company's coal mine, on Tom's Creek, Va., September
8, 1917.
The
allegation of negligence relied on by the plaintiff is that
defendant did not furnish a reasonably safe place to work.
The intestate was employed by defendant company as a driver
of a mule team in its mines. The teams are hitched to little
cars that run on tracks, similar to ordinary railroad tracks
laid along the tunnels, or entries, that lead into the mines.
The rails, laid on cross-ties, are 44 inches apart. The mules
are hitched to the car tandem, or "spike fashion,"
and the rear mule walks about 6 feet in front of the car
being hitched by means of what is called a "tail
chain." The mules walk in the middle of the track
between the rails. The cars are low, and project over the
rails on each side from 12 to 18 inches. Against the sides,
or ribs, of the entries are piled pieces of slate, small
lumps of coal, and other rubbish; in miners' parlance
called "gob."
The
evidence to prove negligence was largely circumstantial, as
no one saw the intestate at the time he was killed.
Russell
Anderson, who was nearest to him, testified among other
things as follows:
"I
was working for defendant company at Bondtown, Va.,
September 8, 1917, at time John Allen Whittington was
killed, and knew him, but not very well; I had been there
only two or three months. John Allen Whittington was
working for defendant company at the time he was killed in
what is known as entry No. 11, Swansea mine, at Bondtown,
Va. He was driving two mules pulling cars from the rooms.
These cars would hold about four tons of coal. On September
8, Whittington was working in West Swansea, and was on 11
West at the time he was injured, and that he was with him.
Whittington was pulling coal for another driver on 11 West.
He was driving two mules, one hitched in front of the
other, spike fashion. Witness knew the mules Whittington
was driving, and they were gentle with reference to their
working qualities. The lead mule was balky sometimes. At
the time Whittington was injured witness was helping a
fellow break a mule. That he was about two car lengths from
Whittington when he was injured, and a car length is about
7 feet. That the injury occurred about as follows: We
coupled up the load and started out. A piece of slate slid
down off the gob pile. I got off and threw it back, and
when I got on the car I did not see him anywhere. I
hollowed at John, and he did not answer, and then I heard
him groan. Neither of the mules balked at the time of the
injury. The mules had not stopped. Whittington was striking
the lead mules across the back with a strap. I don't
know why. On September 8, at the time Whittington was
injured in entry No. 11, slate and gob stuff was on the
outside of the rail stacked up like a wall; ties, props and
things like that were lying across the road; slate piled up
along the road; could not pass a car in some places; had to
climb over; do not know that the track had been recently
relaid in this entry.
Whittington
died from the injuries. When the mules are walking along in
the middle of the track, as they were on this occasion,
there is two or 3 feet open space along by the side of the
mule and the rail, and all that is kept clear in order that
the cars will not wreck. Don't know why the props along
the side of the entry; to hold the slate up I guess; laying
along the road; sticking out and laying out
everywhere--slate piled around there; props were along the
side of entry, two props where he was killed. The two props
which look like they had been set for the purpose of
putting a collar on one time; had some slate or gob around
them down next to the bottom just about as high as the car
is; had to climb over the top to see what was the
matter."
S. M.
Mullins testified:
"The
entry was near the point where he was injured in pretty bad
condition. They had some slate there, some slack and some
rubbish timber, rotten timber, little old rotten timber,
something like rotten timber anyway, maybe two or three
pieces there. The slate was on the side of the track, on
the right-hand side. I never noticed the left-hand side of
the track; the right side, the brake side, was the gob and
some timbers. There was not sufficient room along the entry
where the deceased was injured for him to have walked
between the outside of the rail and the walls of the entry.
The entry in order for a driver to discharge his duties in
safety should be clear for him to get off to catch the
brake if something should happen, for him to work in safe
condition between the car and the rib. The deceased was
lying on his face and belly under the car; his head was
closer to the right-hand rail as you go up than to the
left-hand rail; his head was in the direction of the rear
of the trip, and his feet towards the mules. The entry
should be in good shape that the driver could get off, set
his brake if something should happen, the mules fall down
or something happen, to keep from killing the mule, and
that is for the protection of the mules. On a level track
where the grade is practically level and the cars will not
run without being pulled and the driver's place is on
the front end of the car, I would want the side of the
track outside of the rail to be clear. It looks like it
should be clear. Sometimes if the track is level you want
to set the brake, provided you want to hook the mule up for
something to keep the mule from pulling the car."
W. W.
Nelton testified:
"The
entry at the place where we found him in the car was pretty
well gobbed up, slate and gob on each side of the car;
there was no room for a person to have walked between the
outside rail and the rib; there was slate and dirt and a
few rotten timbers. I have worked off and on in the mines
for the last 12 years. In order that the driver may perform
his duties with ordinary safety I should think the entry
should be clear, should be clean between the rib and rails
along so that if an accident should happen you could have
room to get in the clear. There was a space of 12 or 14
inches on either side of the rail that was free of
gob."
A. B.
Baldwin testified:
"The
condition of that entry at that time at the place we found
him under the car was very bad, in very bad shape. The
entry of the heading had
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