129 P. 1024 | Wyo. | 1913
The defendant in error as plaintiff, and who will be referred to as the plaintiff, brought this action in the District Court of Sheridan County against the Carney Coal Company as defendant, which will be referred to here as the defendant, to recover damages for a personal injury alleged
(1) It is urged that the court erred in the admission and exclusion of certain evidence over defendant’s objection; (2) that the petition failed to state facts sufficient.to constitute a cause of action; (3) that the evidence was insufficient to support a judgment, and (4) that the court erred in refusing to instruct the jury to find for the defendant. The first three of these alleged errors are grouped and discussed together in plaintiff in error’s brief, and for convenience the four may be here considered together.
The case was brought and tried upon the theory that the plaintiff, who was twenty-three years of age at the time of the injury, was inexperienced in coal mining, which fact was well known to the company, and that the company failed to instruct or warn him of the danger incident to his employment and put him to work with a man who was unable to talk or converse in the English language, and which language was the only one in which plaintiff could converse, and that the injury was the proximate cause of the failure of the com--pany to warn and instruct him of the danger and how to discover and avoid such danger. That upon the day of the accident he and his co-employee in the room in which they were engaged in mining drilled a hole in the vein of coal and put in a charge which they fired for the purpose of loosening and throwing down the coal. The shot threw down some of the coal, after which they discovered a large piece of coal partially loosened with a crack in the vein, and inserted an iron tamping bar in the crack and tried to pry the coal down, but being unable to do so they proceeded with their work and while so working the piece of the coal fell and
■ The plaintiff, over the objection of the company, was inquired of as to what his belief was just prior to the injury as to whether or not he was working in a safe place and answered that he believed he was working in a safe place, free from danger, and that there was nothing to indicate that he was in the presence of any danger. His acts just before and at the time of the injury were competent as a part of the res gestae and as bearing on the question as to whether as a reasonably prudent man he ought, under the circumstances, to have appreciated the danger. Evidence tending to show his skill and ability as a coal miner to discover danger and how to avoid it, was competent as bearing on the question as to whether he acted as a reasonably prudent man should or ought to have acted when similarly situated.
The case of Stewart v. Pittsburg & Montana Copper Co., 42 Mont. 200, 111 Pac. Rep. 723, was an action for personal injury. In that case Stewart was injured in emptying a slag pot while executing the order of a superior to enter into a dangerous place, and while acting under the persona] direction of his employer. He was permitted, over objection, to testify that he did not appreciate the danger into which he was ordered by Zachman, the shift boss. The court say: “Contention is made that the witness was thus called upon to determine for himself the very question which it was the duty of the jury to decide; but with this we cannot agree. The question for determination at the trial was not whether plaintiff appreciated the danger, but whether, as a reasonably prudent person, under the circumstances he ought to have appreciated it. The standard in all such cases is that of a reasonably prudent person similarly situated. The plaintiff might say that he did not appreciate the danger, and yet his answer would not avail him if the jury concluded from all the facts and circumstances that, as a reasonably prudent person, he ought to have appreciated it; and the fact that
“We think the evidence was properly admitted. The manifest purpose of the question was to negative the idea that the plaintiff assumed the risk when he went into the place and attempted to pry out the contents of the slag pot. We have repeatedly said that it is not sufficient that plaintiff knows of the risk; he must appreciate the danger as well. O’Brien v. Corra Rock-Island Min. Co., 40 Mont. 212, 105 Pac. 724; Hollingsworth v. Davis-Daly Estates Copper Co., 38 Mont. 143, 99 Pac. 142; Stephens v. Elliott, 36 Mont. 92, 92 Pac. 45.
“What, then, is meant by saying that plaintiff appreciates the danger? In McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542, the court said: ‘When we say that a man appreciates -a danger, we mean that he forms a judgment as to the future, and that his judgment is right.’ If this be correct, and we think it is, how, then, may the jury know whether the plaintiff appreciated the danger or formed a judgment with respect to it, except by the answer he gives to the direct question asked him? As said before, his answer is not controlling upon the jury. It indicates his state of mind at the time he acted; but it is still for the jury to say whether, as a reasonably prudent person, he-ought to have reached a conclusion that the place into which he was ordered was dangerous, when considered in the light of the surrounding circumstances.”
In the case here plaintiff in addition to the foregoing testimony was permitted, without objection, to say in answer to a direct question that he did not appreciate the danger of the falling coal from which he was injured. The jury were not concluded by the answer, but were required
It is here urged, and the evidence tends to show, that the company’s pit boss who employed the plaintiff at the time plaintiff commenced mining coal in its mine knew that he was inexperienced, and notwithstanding such knowledge failed to warn him of the dangerous character of the work, or instruct him, or to place an experienced miner with him in the room where he worked and where he was injured. In so far as the alleged inexperience of Rotolo and his inability to converse, and with whom plaintiff was directed to work by the pit boss, is concerned, the plaintiff testified that he discovered that he was unable to converse with him at the time he first went to work and on the second day thereafter and before he was injured he became convinced that Rotolo was inexperienced as a miner. If, therefore, the company was negligent in failing to place an experienced miner to work with him, that fact became apparent and was known to plaintiff before the injury occurred, and notwithstanding such knowledge the plaintiff continued to work in the room with Rotolo up to the time of the injury. The question, however, as to Rotolo’s inexperience as a coal miner and his inability to speak the English language, and all evidence bearing thereon, was withdrawn from the jury. It is alleged in the petition, and there is evidence to the effect that plaintiff worked and was paid miner’s wages while working with his father in mining coal in another coal mine during the summer of 1903, and also as to his previous employment in and about the defendant’s mine as a car driver, but it may be said that of itself did not relieve the company.with knowledge of his inexperience if in fact he was inexperienced, from the duty of warning him when he
It is here urged that the danger was not latent, but was obvious, and brought about by the act of plaintiff in the course of his work, and for that reason the plaintiff was charged with knowledge of the danger. Whether the danger was obvious to the servant is ordinarily a question of fact for the jury, and in determining that question the jury
There is nothing in the evidence tending to show that had the sounding test been used it would have enabled an experienced miner to discover more than the fact that the coal had been loosened by the blast and the crack, which was ap
In Montgomery Coal Co. v. Barringer, 218 Ill. 327, 75 N. E. 900, the court refused the company’s request for a peremptory instruction to the jury to find in its favor, and the Supreme Court speaking of assumed risks say: “The theory * * * is that when the servant had full and complete knowledge of the condition of * * * the place in which he is doing work, and no special knowledge is required on his part to apprise him of the danger which he incurs while * * * working in such place, he will he presumed to have assumed the risk of being injured * * * while working in such place, and that in case of injury the master, by reason of such assumption of risk, is not liable. In the case at bar the defect was obvious and open to the observation of every person of ordinary intelligence who would take the pains to observe the conditions which the appellant knew to exist. The appellee had full opportunity for such observation and, in the language of the Wilson Case (Lake Erie & Western Railroad Co. v. Wilson, 189 Ill. 89, 59 N. E. 573) this was ‘sufficient to charge him with knowledge’ of the defect and its attendant danger, and he was therefore barred, by reason of such knowledge, from a recovery.” It is also said in 26 Cyc., at page 1170, that, “Although a master is negligent in not giving his servant instructions as to the dangers of his employment, if the servant receives such information from other sources, whether from other persons or from his own observation, and is thereafter injured, the master is not liable, since his negligence is not the proximate cause of the injury.”
The danger being obvious, the question recurs, what would a reasonably prudent man similarly situated have or.
The plaintiff is presumed to have known the law of gravitation — that the coal would fall of its own weight if its support was removed, and that if it fell on him it would cause injury. (Swanson v. Great Northern Ry. Co., supra; Walsh v. Ry. Co., 27 Minn. 367, 8 N. W. 145; Olsen v. McMullen, 34 Minn. 94, 24 N. W. 318; Pederson v. City of Rush ford, 41 Minn. 289, 42 N. W. 1063; Quick v. Iron Co., 47 Minn. 361, 50 N. W. 244.) In Thurman v. Pittsburg and M. Copper Co., 41 Mont. 141, 155, 108 Pac. 588, 591, the Supreme Court of Montana say: “While under the general rule it is the duty of the master to use ordinary care to furnish a reasonably safe place to work, and while this duty can not be delegated, in mining one of the necessary incidents of the employment of the servant is the making of the place in' which he works; and any danger arising from the work as it progresses, -caused by changing conditions, or the making of. dangerous places safe, is assumed by the employee.” In the case here there is no question that the room in which plaintiff was put to work was safe at the time he went to work. The conditions changed as the work of himself and Rotolo progressed, and such conditions so changed as a necessary incident of their work. .The plaintiff and his co-employee tried to pry down the coal by inserting the iron bar in the crack. Prudence dictated to them the necessity of so doing, just as any reasonably prudent man would have done under like circumstances in order to avoid the danger of falling coal. True, -plaintiff testified that he did not appreciate the danger of falling -coal. His testimony must be considered in the light of his conduct and other evidence given by him
Defendant contends and its theory is that upon the allegations of the petition and the evidence it was an assumed risk on the part of the plaintiff. Such risk is not assumed by a servant when the latter is inexperienced and his employer, knowing that fact, has failed to warn and instruct him of the danger from latent defects in the place of the employment and the method of detecting and avoiding the same, and such failure is the proximate cause of injury to such servant. Such is the established rule. The issue of negligence here tendered cast the burden upon the plaintiff to prove that he was not only inexperienced, uninstructed and not warned under such circumstances as to constitute negligence on the part of his employer, but that such negligence was also the proximate cause of his injury. If it was not the proximate cause of his injury then the failure to warn and instruct the servant was not actionable negligence and as already stated we think the plaintiff failed to prove that the company’s negligence, if any, was the proximate cause of his injury. We deem it unnecessary to dis
Other specific assignments of error are presented, but in view of what we have already said we consider it unnecessary to discuss them other than to say that we have examined and considered the alleged errors in refusing to instruct the jury, as requested by defendant, and in giving instructions over defendant’s objection, and find as to them no prejudicial error, and but for the failure of proof as indicated the instructions. would have fairly presented the case to the jury. For such failure of proof the defendant was entitled to the peremptory instructions requested by it for a finding in its favor, and the court erred in overruling its motion for a new trial upon that ground. The j udgment will be reversed and the case remanded for further proceedings in the lower court. Reversed and remanded.