147 Iowa 225 | Iowa | 1910
At the time of the injuries complained of the plaintiff was a coal miner and an employee of the defendant. The defendant was operating its mine in what is known in the record as the. “low coal” district. The coal vein in this region is thin, and the entries are correspondingly low, usually running less than five feet in height. On the day of the accident plaintiff was directed by the pit boss to engage temporarily in driving a mule in one of the entries, known in the record as the “first left entry.” That is to say, the cars were drawn by a mule, and the plaintiff was required to bring in loaded oars from the miners’ rooms, and to take back empty cars for distribution thereto. According to plaintiff’s evidence, he was not familiar with the work, and, he entered some degree of protest against it. The pit boss assured him that it was a safe entry, and pressed the service upon him. According to his understanding, the mule presented some elements of danger. She would “kick and balk.” Because of this fact, and because of his lack of experience, he entered upon the work with some trepidation, and doubtless with some lack of skill. He made two round trips without incident, and was engaged upon the third when the accident happened. ' While bringing in a string of loaded ears, he was caught between the load and a ro'ck overhead, which protruded from the roof at one side of the entry several inches lower than the face of the rock on the other side thereof. In his previous trips he had necessarily passed this point five times, but had not observed this condition of the roof. He had not passed under this protruding rock, but had passed to one side of it, where the roof was higher. There was sufficient evidence to go to the jury on the question of defendant’s negligence and plaintiff’s contributory negligence, and no serious complaint is made as to the form of the instructions. The jury returned a verdict for the plaintiff for $150.
Assuming that the other two instructions asked on the subject were correct as abstract propositions of law, they were properly refused because the defendant had not pleaded such defense. The only reference to the subject contained in its answer is the following: “Defendant further states that whatever injuries, if any, the plaintiff received were such as he assumed the risk of in his employment by the company.” The term “assumption of risk” has come to be used in a twofold sense. It is often said that an employee assumes the ordinary risk that is incident to his employment. This form of assumption of risk is often pleaded by defendants in personal injury cases, although it is quite unnecessary to do so. Assumption of 'risk in its true sense has reference to those risks arising out of the negligence of the master when such negligence is known to the employee, and the danger therefrom appreciated by him. In the first form herein indicated a specific pleading of assumption of risk of the ordinary dangers incident to an employment is a mere amplification of the general denial, and adds nothing to it in a legal sense. In the second form herein indicated it is an affirmative defense, and must be specifically pleaded as such. Sankey v. R. R. Co., 118 Iowa, 39; Mace v. Boedker, 127 Iowa, 731; Martin v. Light Co., 131 Iowa, 734; Beresford v. Coal Co., 124 Iowa, 39. The most that can be said of defendant’s pleading in this respect is that it sets
We have no occasion to take issue with the appellant on any of the foregoing propositions, but they present nothing decisive for our consideration. As to the last-stated proposition, the complaint is that the character of the mule was. proved by “general custom.” That line of proof seems to have been acquiesced in at the trial. Even the defend
Defendant’s witnesses contended that the plaintiff ought to have taken his position on the “tail chain” at her heels, with one hand upon her tail, and the other upon the front .end of the car. It is said that this position enables the driver to keep his head below the sky line of the mule’s back, and that it is one from which he may be easily dislodged in case of accident. But the plaintiff chose to ride upon the “drawbar” in the rear of the first car, and preferred the risk of unknown danger to that which was obvious and imminent. His witnesses testified that this was a proper place, and in accord with the “general custom.” This latter “general custom” has arisen somewhat in deference to the “general custom” of mules. It is in this wise that the propensities of the motive power have become involved in the legal subject of “general custom.” This is the concrete case. We see no way to apply it to any legal principles with entire safety to the great body of the law, which might well deem the “drawbar” preferable to the “tail chain” in such an application. Hnique as the subject is, we are disposed to the opinion that the • evidence was generally competent. But whether competent or
We find no prejudicial error in the record, and the judgment below is affirmed.