292 F. 34 | 8th Cir. | 1923
Defendant in error, who was plaintiff below, had judgment for damages for personal injuries caused by the alleged negligence of plaintiff in error, which judgment the latter here seeks to reverse. We shall refer to the parties as they stood below, and for brevity designate them as plaintiff and defendant.
Plaintiff, while employed as a tracklayer in a coal mine operated by defendant, was seriously injured. The negligence relied on for recovery is the alleged failure of defendant to furnish plaintiff a safe place to work, and the failure to give proper signals of the lowering of a cage in a hoist used in defendant’s mine. The defenses^ below were: (a) Contributory negligence of plaintiff; (b) that plaintiff was injured by the negligence of a fellow servant; and (c) the assumption by plaintiff of the latter risk, as well as the risk of the situation.
Plaintiff, a man of mature years, had had experience in many fields of labor and occupation. Before he was injured, he had been working in the mine of defendant for 41 days, and necessarily had become familiar with its condition and the situation of all its adjuncts. The depth of the shaft, to the level whereat plaintiff’s hurt happened, was only some 57 feet, which includes some 15 feet above the surface of the earth to the floor of the tipple house superstructure. There were windows in the tipple house, through which light, in some degree, at least, penetrated to the bottom of the working level or drift.
This shaft was a double shaft, with two divisions or compartments. On one side of this double shaft there was a stairway, leading down from the tipple house to the bottom of the drift or working level. This stairway was used by the miners, tracklayers, and other underground employees, in going down into the mine to work and in returning therefrom. The stairway shaft, as well as the hoist shaft, was floored. There was a sump under this floor to catch seep water. On both the north and the south sides of this stair shaft there was an opening called a manway, through which the employees, including plaintiff, passed in going to and from the stairway into the mine to work, or in returning therefrom. These manway openings were from 20 inches to 27 inches
The other half of the shaft was occupied by the hoist, which consisted essentially of a cage, made to ascend and descend in the shaft, by winding or unwinding a rope upon a horizontal capstan, or windlass operated by steam power. When at the bottom of the shaft, this cage rested in a depression some 8 to 14 inches below the general bottom of the mine floor, or level; so that cars loaded with coal could be run directly from tramroad rails on the cage, and thus be brought to the surface. Loaded cars coming from the north (whence the coal was, being taken when plaintiff was hurt) were run upon this cage from the rails of the tram-road. Unloaded cars coming down were run to the south, likewise upon a connecting tramroad, and were there shunted around the shaft, through a drift east thereof containing a tramroad, back to a point north of the shaft, to be again loaded.
At the bottom of the shaft there was employed a man called a “eager,” whose duty it was to push loaded cars on the cage and to push off unloaded ones. When the cage was loaded and ready to go up, the eager called up the shaft to the hoist operator, “Coming up,” and the latter called “Coming down,” when the cage was descending.
There was an electric light placed about 9 feet from the bottom of the shaft on the north level. The plaintiff, at the time he was hurt, had a light on his hat. He was hurt while he was endeavoring to pass from the north side of the hoist shaft to the south side thereof, where he desired to get certain ties which had been placed there, for use in his work of tracklaying. Instead of using the manway, he chose to pass through the hoist shaft. The cage came down; he was struck by it and seriously hurt. His own version of what occurred runs thus:
“We were ready to put in the ties, and I looked around for them and did not see them, and I walked out of the west entry and saw the ties standing by the wall of coal, about To feet away. I looked straight toward the ties, and I heard somebody holler, ‘Duck your head,’ and there was the cage about a foot above my head. I had a light on my hat big enough so I could find the hole to get into the stairway shaft. When we come up to the shaft, we don’t look for it. If I had looked, I could probably have seen it, I suppose.”
Being questioned further as to his actions as he approached the ties, which were on the south side of the hoist shaft as he came toward them from the north side thereof, he made these answers:
“Q. I say, where were you looking? A. I was looking toward the ties.
“Q. And did you keep looking toward the ties all the time? A. Yes, sir; looking toward the ties.
“Q. You didn’t make any effort to look around? A. No; looking at the ties.
“Q. You didn’t make any effort to look around, to see whether you were going toward the cage or not? A. I didn’t know the cage was there.
“Q. You didn’t make any effort to find out whether it was there or not? A. I didn’t know the cage was there.
“Q. I say, when you came along there, you kept constantly looking at the ties, as you went towards them to get them; that is right, is it? A. Yes.
“Q. And you didn’t swing the light on your cap around to see whether you were coming near the hoistway or not, where the cage came down; you didn’t look around to see that, did you? A. No.
*37 “Q. You didn’t notice, as you came along the entryway into the stairway shaft, did you? A. I looked straight ahead towards where the ties were.
“Q. If you had switched your light, turned your head a fraction of an inch, you could have seen that entry as you came along, couldn’t you? A.T didn’t see it.
“Q. I say, if you had switched your head a little bit to the left there, as you were coming south, you could have seen that entryway into the stairway shaft? A. Yes; I could have seen it.
“Q. And you could have seen the timbered wall there between the two shafts, if you had switched your light a little, couldn’t you? A. I probably could; I don’t know.”
But in view of the conclusion, which is inevitable, even if regrettable, that plaintiff was upon the record guilty of the grossest contributory negligence, no occasion arises to pursue the subject of assumption of risk, further than the merely general observations set out above.
It follows that the court erred in refusing to direct a verdict for defendant, and the case ought to be reversed and remanded, with instructions to the trial court to grant a new trial; and so accordingly it is ordered.