93 Iowa 54 | Iowa | 1894
I. Fosburg was killed in the forenoon of the twenty-fifth day of July, 1891, by a fall of slate in one of the entries of the mine, and while he was engaged in carrying some timbers with which to lay a track to enable him to mine coal in a certain room in the mine. The mine had not been in operation for some three months, because of a general strike among the miners. Work was resumed some two or three, days preceding the accident. Deceased was an experienced coal miner. He had been engaged in that business in this state for some eleven years previous to the resumption of work in defendant’s mine. Some two or three days-prior to the death of Fosburg, his son made application at the mine for employment for himself and his father. He was promised work, and on the morning of the day of the accident they went to the mine, and notified the pit boss of their readiness to begin work. The room in which it was intended the deceased should work required cleaning up before he could commence the work of removing coal from it. The cleaning up of the room was no part of the work of a miner. That duty devolved on the coal company, but
Upon the question as to the duty of the defendant in reference to keeping the roof in a reasonably safe condition the court instructed the jury as follows: “(7) The defendant was not bound to use more than ordinary care; but it was bound to use such care. As you have been told, ordinary care is such care as a man of ordinary prudence and care would observe under like or similar circumstances. (8) If you find that the death of Fosburg was caused by the negligence of a coemploye, then the plaintiff cannot recover in this case. Coem-ployes are those engaged in the same general business, working to the accomplishment of the same general end. Generally the man who mines the coal and he who labors upon the roof way are coemployes, and fellow workmen. (9) It was the duty of the defendant company to keep the entry complained of in good repair, and the roof in a reasonably safe condition. Being a corporation, it could only discharge this duty through employes. Now if you find that the defendant devolved this duty on A. J. Evans, the pit boss, and gave him the right to employ and discharge workmen, and to direct them as to what they should do, then the said Evans would not be a fellow workman with Fos-burg, but a vice principal; and if you find that he was
III. There are othqr questions discussed by counsel, which do not require special consideration. It is claimed that the third paragraph of the charge to the jury is erroneous. Considered alone, it is not technically correct, but, when construed in connection with the whole charge, the error was without prejudice.
IV. It is averred in the petition “that said defendant had negligently allowed said roof to become dangerous, and had wholly neglected and failed to support said roof with props or other support, as by law provided, and as is proper, usual, and customary in coal