159 Iowa 402 | Iowa | 1912
The facts, as gathered from briefs of counsel and from the record, are substantially as follows: The plaintiff is an Austrian by birth, and thirty-six years of age. He came to America from Austria six years before he was injured, but at the time of his injury he was unable to speak fluently or to understand fully our language. He had worked in coal mines during his residence in this country, all of such work, prior to his work for the defendant, having been done in Pennsylvania, "Wyoming, and North Dakota. He commenced work for the defendant eight or nine days before he ivas injured. The defendant put him to work in a room that had been driven in from the entry about fifteen or twenty feet, and, on the day that he was injured, he had extended the room so that the face of the coal was some distance farther away from the entry. Between the -entry and the room where he was at Avork there Avas Avhat is called the “neck of the room or entry”; a narroiv opening for passage and for hauling coal from the room proper. The defendant company had not put' a track from the entry to the plaintiff’s room, and, at the time he Avas injured, he was engaged in loading coal in a car that was standing on the track in the entry at the neck of his room. At the time of his injury, he was in this neck of the room, about four feet from the car that he was loading, and another miner was in the room bringing coal therefrom and throwing it doAvn in the neck of the room
When the plaintiff went to work in this room, the neck thereof had not been opened sufficiently to admit the passage of a mule, and it was a part of the plaintiff’s work to increase the depth of the passageway by either removing more of the roof or bottom. There was evidence tending to show that he had sufficiently enlarged this neck for the needed purpose a day or two before the accident by lowering the floor thereof. The plaintiff and one of his witnesses testified that he had not
(a) He knew for several days before the accident that the roof of his room neck was likely to fall, since he testifies it was ‘awful badly loose; sounded drummy’; and was so ‘heavy’ that he claims to have told the pit boss ‘it was impossible to prop it.’ (b) Knowing this, he continued to work under this roof, knowing it to be wholly unsupported, believing it to be an unsafe place to work, and without attempting himself to support it. (c) After having fired shots in the bottom of his room neck, he returned to work under the roof in question at noon of the day of the accident, without further sounding the roof or without attempting to prop it, notwithstanding warnings, and knowing the roof to be loose and dangerous, (d) The plaintiff was guilty of a misdemeanor, omitting tO' ‘securely prop' and support the roof of the room under his control, ’ at the time of his injury, and hence guilty of contributory negligence as a matter of law. It cannot be argued by plaintiff that there was no causal relation between his criminal omission to prop and*406 secure the roof of his room, since he relies upon an alleged negligent failure of the defendant to do that very thing as the sole basis of his alleged right of recovery, (e) The alleged breach by defendant of the terms of the ‘Des Moines Agreement’ relative to double-timbering being necessarily known to the plaintiff at and before the time of the accident, so far from excusing plaintiff’s gross negligence, was in law and in fact an additional warning to him to avoid the obvious impending danger of working under the unsecured roof, and intensifies, rather than lessens, the degree of the plaintiff’s negligence, (f) The alleged assurances of safety by the pit boss and timberman do not afford plaintiff a legal excuse for exposing himself to the danger in question, because (1) they were remote in point of time; (2) they were given under conditions different from those existing at the time of the accident; (3) by persons not shown to have possessed knowledge equal to the knowledge possessed by the plaintiff of the danger he was incurring in working under a roof known by him to be loose, heavy, drummy, wholly unsupported, and unsafe at the time of the accident.
And in support of these several positions the appellant relies upon decisions of this and other courts; to which we shall give further attention later in this opinion. The plaintiff insists that the question whether he was guilty of contributory negligence was one for the determination of the jury, and not for the court, for the following reasons, as stated by his counsel:
(1) The plaintiff was of Austrian birth, and was not very familiar with the English language. The record discloses that he had to have an interpreter when giving evidence in the case at bar. (2) While he had been engaged in the coal mining business for about six years prior to his injury, his experience in mining coal in Iowa and in the mine in which he was employed at the time of his injury was but seven working days. (3) The roof which fell and injured the plaintiff was in need of double or cross-timbering and became in this condition two or three days after the, plaintiff began working. (4) When the plaintiff, by sounding the roof, learned that it needed double or cross-timbering,*407 he informed the pit boss that he wished some crossbars placed ,unde:r the roof, and the pit boss told him that they did not have any timbers and would do it as soon as they got them. (5) The day before the plaintiff was hurt, the plaintiff again requested the pit boss to put in some crossplanks, and the pit boss on that day became angry and said he knew more about coal mining business than the plaintiff, and he knew that the place was safe, and he said to the plaintiff, ‘You go in and go to work. ’ (6) When the pit boss told the plaintiff the place was safe, and for him to go in and go to work, the plaintiff was ashamed of himself and thought he would go in and go to work, because, as stated by the plaintiff, he did not want to say anything more to the pit boss because he was more experienced in the mining business than the plaintiff. (7) The pit boss talked to the plaintiff in English. (8) The plaintiff also talked to the timberman, Prank Mikus, and the timberman talked to the plaintiff in the Austrian language, but used a little different dialect from that used by the plaintiff. (9) The plaintiff requested the timberman to double-timber this place when the timberman was sitting in the neck of plaintiff’s room. (10) The timberman admits that the plaintiff said to him the roof needed timbering around the neck and mouth, and the timberman set in some timber. (11) About two days before the plaintiff was injured, he told the timberman that he needed some more timbers inside, and the timberman put in one more. The timber was put in at the entrance to the neck of the room at the left-hand side of the entry by digging a hole in the coal along the rib or wall of the entry, and putting bars across the room with a prop -under one end, and the other end of the crossbar was placed in a hole in the rib or the wall. This cross-timber was a crosspiece under the slate. (12) The timberman swears that the roof of the room neck needed two more timbers, and the plaintiff requested these. (13) At the time the plaintiff asked the timberman to put in these two other crosstimbers, the timberman said to him, ‘I Will see, I no got any timbers. I tell him I will put them in but I have not got any.’ That was two or three days or something like that before the plaintiff got hurt. (14) The timberman testified that the company had enough timber on hand on top to timber this place, but he did not always get timbers when ordered. That at times they sent down timbers and they were taken to some other place, but they usually sent*408 timbers where they were told to, and as soon as they were told. (15) The testimony is conclusive that the roof at the place where it fell upon plaintiff should have been timbered and made safe by the defendant, because it required double or cross-timbering, and it was not the plaintiff’s duty to do this kind of timbering. (16) The contract denominated ‘the Des Moines Agreement,’ which was marked Exhibit ‘A,’ and offered in evidence by the plaintiff, required the defendant to do double-timbering when it was necessary to be done, when requested by miners, and it is conceded that this agreement was binding between the plaintiff and the defendant at the time of his injury. (17) The plaintiff testified it was impossible to hold up the roof with ordinary upright propping. (18) To have attempted to put up anything else but cross-timbering would have practically closed the neck of the room. (19) The fact that the timberman had made two efforts toward cross-timbering the roof between the first request and the injury, and the statement of the pit boss that the roof was safe, and he knew this because of his superior knowledge, and for plaintiff to go in and go to work, followed by the shame of plaintiff because he had complained, put plaintiff off his guard and lulled him into insecurity.
Summarizing somewhat, there is evidence in the record tending to establish the following facts, and, in determining whether the plaintiff was guilty of contributory negligence, they must all be given weight and consideration:
(1) That the roof in the neck of his room was safe when he went there to work. (2) That, when it became unsafe, it required double-timbering. (3) That the plaintiff ascertained this fact and requested the pit boss to timber. (4) That the pit boss agreed to double-timber. (5) That the plaintiff notified the timberman. (6) That the timberman testified that he did no double-timbering. (7) That two days before the accident the plaintiff again notified both the pit boss and the timberman that additional double-timbering was needed in the neck of his room. (8) That the pit boss then told the plaintiff that his room was safe and that his (the pit boss’) superior knowledge of mining and his experience in the mine caused him to know it was safe, and he*409 ordered and directed plaintiff to go in and go to work. (9) That the plaintiff then felt ashamed that he had formed the' opinion that the place was unsafe, and went into the room and worked up to the time of his injury. (10) That the timberman testified that, during the time the plaintiff worked in the mine, he said to the timberman he wanted timber around the. neck and mouth of the room, and the timberman set them in, and that two days before his injury the plaintiff said he needed some more timber inside, and the timberman put one more cross-timber in and the room neck still needed two other cross-timbers. (11) That these timbers were on top and the timberman had ordered they be sent down. (12) Add to this the further fact that the plaintiff had not worked but seven days in this mine, or in any Iowa coal field, and was not familiar with the roof, or its characteristics, in this particular mine, as was John Bennett, the pit boss, who assured him it was safe, and ordered him to go to work.
In this ease at bar it is established without conflict: First. That .the plaintiff did not create the danger which confronted him, the coal in the neck of the room having been removed by another, and prior to the time he was employed. Second. That the danger did not arise from any fault of the plaintiff. Third. That the duty to double or cross-timber the neck of the room was the company’s duty and not the plaintiff’s. Fourth. That the plaintiff and defendant had contracted that it was the company’s duty on the request .of plaintiff to double-timber. Fifth. It is conclusively established by the testimony that the plaintiff made the request to double-timber to both the timberman and the pit boss.
While the question whether the plaintiff was guilty of contributory negligence is a close one, we are of the opinion that it was a question that the jury should alone determine. Nugent v. Cudahy Packing Co., 126 Iowa, 517; Hardy v. C., R. I. & Pac. Ry. Co., 149 Iowa, 41, 26 Cyc. 1235, and eases cited; 5 Thompson on Negligence, section 5383. The question of the servant’s contributory negligence, where he is ordered into the place of danger by a person in authority, is fully discussed in Hardy v. Railway Co., supra, and it will serve no useful purpose to again cover the ground. We think
III. These facts which we have recited clearly show that the question of the defendant’s negligence was for the jury.