171 Iowa 459 | Iowa | 1915
— The defendant is a corporation engaged in coal mining. The plaintiff was an experienced coal miner in its employ. The accident resulted from a falling roof which was insufficiently propped. The negligence charged against the defendant was that it failed, after repeated requests from the plaintiff, to furnish props for the propping of such roof. The defense interposed was a general denial and plaintiff’s assumption of risk and contributory negligence. The accident occurred in the plaintiff’s room or “place of work.” The entry which immediately connected with this room extended east and west. The room extended from the entry toward the north. This room had been worked to a depth of 100 feet from such entry. It was about 20 feet wide, except at its south end, next to the entry, where it was only about 9 feet wide. As the miner’s work progressed, a track
‘ ‘ Sec. 2489-5a. The owner, lessee, operator or person in charge of any mine shall at all times keep a sufficient supply of caps and timbers to be used as props or otherwise, convenient and ready for use and shall send such caps, timbers and props down when requested and deliver them to the places where needed.”
‘ ‘ Sec. 2489-16a. It shall be the duty of each employee' to examine his working place upon entering the same and shall not commence to mine or load coal or other mineral until it is made safe. Each miner or other employee employed in a mine shall securely prop and timber the roof of his working place therein. . . . When draw-slate or other like material is over the coal, he shall see to it that proper timbers are placed thereunder for his safety before working under the same.”
From the first section above quoted, it will be observed that it is the duty of the employing corporation to keep a supply of props convenient and ready for use, and that it is its duty to “send such props down when requested and deliver them to the places where needed. ’ ’ Under the second section, the duty to prop and timber the roof of the miner’s room or working place is upon the miner himself. Manifestly, however, this particular duty cannot rest upon him until his employer has sent the props down. The duty of the employer to send the props down does not arise until the miner has
The first contention of defendant at this point is that, as the failure of the employer to furnish props when requested becomes negligence as a matter of law because of a violation of the statute, so the failure of the miner, if any, to discover the unsafe condition in his room, and his failure to refrain from mining and loading coal until safety be secured, are also negligence as a matter of law, because it is a violation of the express provisions of the statute; and that if it be such negligence, then it becomes the proximate cause of the injury, or at least a contributing cause, either of which will defeat recovery.
For the plaintiff, it is argued that the term “safe” is a relative term and that it necessarily involves different degrees and that its ascertainment in advance must necessarily rest on the judgment of the inspector; and that, therefore, if the plaintiff in this case, in compliance with the statute, did examine the roof of his room with reasonable diligence under all the circumstances, and if, upon such examination,
If we were to adopt the contention of the defendant, it would make the miner an insurer of the safety of the mine, regardless of any breach of duty on the part of the employer. The constructive negligence of the miner thus created would necessarily act as a screen to the employer against the consequences of his default, regardless of the diligence and judgment which the miner might exercise in a given case. We think that the term “safe” is necessarily a relative one. By its very meaning it involves degrees. There can be no such thing as absolute safety, — certainly not in a coal mine. There may be comparative safety or a high degree of safety. Even then the accident may happen. After the accident, and in the .light thereof, it was disclosed that the place was not previously safe and the danger was in fact imminent. Before the accident, it may have been beyond the range of ordinary diligence, skill, and experience to have discovered the danger. If this had been a case of failure to prop when props were furnished, or a failure to request props when they ought to have been requested, quite a different question would be presented. The miner is not required to keep out of his room because it is not propped. He is required to ■inspect it promptly and diligently and to discover its dangers to the extent that diligence will discover the same. He is necessarily exposed to possible danger in the performance of this duty. If in the inspection he discovers indications of a condition which a reasonably prudent man would not regard as safe, then the place is not safe within the meaning of the statute. And the converse of this proposition must likewise
“That in all cases where the property, works, machinery or appliances of an employer are defective or out of repair, and where it is the duty of the employer from the character of the place, work, machinery or appliances to furnish reasonably safe machinery, appliances or place to work, the employee shall not be deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employee may have had knowledge when the employer had knowledge of such defect, except when in the usual and ordinary course of his employment it is the duty of the employee to make the repairs, or remedy the defects. Nor shall the employee under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would' not have continued in the prosecution of the work; but this statute shall not be construed so as to include such risks as are incident to the employment; and no contract which restricts liability hereunder shall be legal or binding.”
If we are correct in our views -already expressed as to the causal relation between the negligence of the defendant and the accident in question, then it must be said that the defect of failure to prop was a defect of appliances which it was the duty of the defendant to furnish. Elnowledge of such failure was known equally to the employer and the employee. The purpose of this statute is to forbid the employer to lay upon his employee the consequences of his own failure simply because such failure was known to the employee. There is
We are clear, therefore, that this feature of the case is controlled by the quoted statute. The question of assumption of risk, therefore, is not in the case. The case must turn upon the question of the negligence of the defendant and that of the contributory negligence of the plaintiff; and these questions must be governed by the terms of the statute which we have already quoted.
The conclusions announced above have support in the following cases: Low v. Clear Creek Coal Company, (Ky.) 131 S. W. 1007; and Johnson v. Mammoth Vein Coal Company, (Ark.) 114 S. W. 722; although the statutes construed in the cited cases differ somewhat in material respects from those herein construed.
Complaint is directed against, Instruction VII, which was as follows:
6‘ sMiVANT fND couMtatory advertent ' omission. “One who is injured by the negligence of another cannot recover compensation for his injury if he by his own ordinary or wilful wrong contributed to produce the injuries of which he complains, so that but for his concurring and co-operating fault, the injury would not have happened to him.
It is quite evident that the word “negligence” was omitted by inadvertence after the word “ordinary.” This was the only instruction given on the subject of contributory negligence. From what we have already said, it is manifest that it was not sufficient.
Complaint is directed against instruction VI, which purports to be an abstract definition of negligence. "We need not set it out. It is sufficient to say that it is a departure from the usual definition and is of doubtful accuracy, to say the least. An appropriate definition is set forth in instruction VIII. "We think it preferable to the other.
, Complaint is urged against several instructions which deal with the question of assumption of risk. In view of what we have said in division IV hereof, we need not deal with these.
The only relief which the plaintiff could obtain would be a new trial. Tie obtains that upon the appeal of the defendant. Our appellate practice does not contemplate that we shall give abstract consideration to the grievances of the winning party unless they operated to the reduction of the recovery. The effect of the reversal on the appeal of the defendant is to set aside the adjudication and to re-open the case for trial.
For the reasons indicated, a new trial must be awarded and the judgment below is accordingly — Reversed.