154 Iowa 710 | Iowa | 1912
Deceased, George Hraha, Jr., was an employee of the defendant, engaged as a driver of cars in defendant’s coal mine. He was a member of a miners’ union, between whom and the operators there was a contract prescribing their respective duties. On January 28, 1910, while taking a car into a room being mined out by one Hawk, and when about sixty feet from the main entry and sixty feet from the face of the coal, a piece of slate from the roof over the driveway fell upon plaintiff’s intestate, killing him instantly. The drive or roadway was about four and one-half feet wide, and props were placed on either side about four feet apart. At the place where the slate fell there were six props on one side and five on the other, which were about three and one-half feet apart. The agreement between the operators and the miners contained the following provisions:
(a) In accordance with the state law, the company shall furnish all necessary timbers and the miner shall keep
The only grounds of negligence submitted to the jury were the following: “Plaintiff states that defendant was negligent: (1) In that it failed to double timber the roadway at the place where plaintiff’s decedent- was killed. (2) That defendant was negligent, in that it did not exercise ordinary care to furnish plaintiff’s decedent with a safe place in which to do his work, in that it failed to timber the roadway at the place where the slate fell upon plaintiff’s decedent, with the knowledge or means of knowledge of the dangerous and unsafe condition of the roadway at that point.”
As observed in State v. Young, 134 Iowa, 505, this statute is not mandatory, and it will be noticed that depositions are not to be sent unless all the testimony is in writing. We are constrained to hold that the translation of the shorthand notes of the testimony taken before the coroner’s jury is so much in the nature of a deposition that it should not have gone to the jury. Moreover, but a small portion of it was used for impeaching purposes, and the trial court was justified in refusing to send it all. There was no question whatever regarding the rules which existed between the miners and the operators, and no prejudice resulted from refusing to send them to the jury. While the affidavit made by the witness might well have been sent, yet no prejudice resulted from denying the request. This exact point is ruled by McMahon v. Iowa Ice Co., 137 Iowa, 368. None of the items may properly be classed as real or demonstrative evidence as in State v. Young, supra. There the exhibits were a species of real testimony, the very thing
No prejudicial error appears, and, as the instructions are not critcised and the verdict has support .in the testimony, we should not interfere.
The judgment will therefore be, and it is, affirmed.