144 Iowa 640 | Iowa | 1909
William M. Lammey, a man sixty-three ye,ars of age, and by occupation a carpenter and miner, was on the 26th day of October, 1907, and while in the employ of the defendant, killed by the fall of slate from a roof in one of the rooms of defendant’s coal mine, while he and his son, who was his partner, or, in mining parlance, “buddy,” ,were at work in said room. These men had been at work in that room for about one week previous to the accident, and worked it back so that the face of the coal was about thirty-five feet from the entryway. At the mouth of the room the coal vein was about four feet thick; but 'it increased as the work progressed, so that at the face of the coal it was about four feet and six inches in height. The room was being driven toward the east, and was about twenty feet wide from north to south. To secure the roof props of timber either four by four or four by six inches were used. The props which defendant furnished for the mine were but four feet in length, and to use them successfully a cap about four inches in thickness had to be used, and then a wedge driven in over this cap, so as' to make the prop tight enough to stand. At the time of the accident all the props which defendant had sent down to the room had been used, and it is contended that defendant was negligent in that it had failed to deliver, at the mouth of the room where plaintiff’s intestate was working, props of the necessary size and length, although ordered on the 24th, the 25th, and 26th days of October, respectively, and before the accident occurred. When plaintiff’s son last called for props he was informed by defendant’s agent that they had been sent down, and thát it was stránge they had not been received. Plaintiff’s son then went down into the mine, and, as he says, found some unused props in another room in the mine and some others in the “gob;” that he took these and added them to those which had already been set, making some seven or eight under the slate which fell. It also appears that no one but the de
As bearing upon the son’s knowledge of the defective roof and of the safety of ’ the driveway even after the propping was done, we quote the following from the testimony of the son, delivered upon the trial of the case:
I noticed this slip as I drove through, so at the ti-me my father started work I knew there was a slip, a dangerous piece of slate in the roof above where we were at work. Worked right under it and dug the coal out from under it. I discovered it as soon as I reached it and knew it from that time forward until father was killed. Had discovered the slip shortly after I had started in the room eight or ten days before. It was about six days before
This witness also testified that his father, the deceased, was an experienced miner. He further testified as follows:
He was there drilling at the time. He did not do any of the propping at all. I considered it safe; talked with father about it. Told him I had propped it up safe. I sounded it that morning and made up my mind it was safe the way I had propped it. My experience as a miner taught me that it was liable to fall at any time. I had eight props under it all told at that time, and, knowing from my experience as a miner that it was liable to drop at any time, I went ahead with my work. Was drilling when the piece fell, and father was loading a car under the slip.
Regarding the use of props, this witness gave the following testimony:
Had been using four-foot props. The height of the room under this slip was about four feet two or three inches; the thickness of the cap, two inches; of the wedge, about an inch. I do not know that there was anything unusual or out of the ordinary in the method in which we were propping. Q. Is the use of wedges ordinary and common? A. It is. Q. Do you use a wedge about every time you put up a prop ? A. You do. Q. And you also use a cap ? A. Yes, sir. Q. Well, then there was nothing unusual and out of the ordinary in the method in which you were propping there? A. Nothing that I know of. Q. You used the wedge and the cap and the prop ? A. The wedge, cap, and prop. Q. And three of them covered the distance, did they, between the floor and the roof? A. Yes, sir; done to draw the prop up as tight as it should be. Q. What did you drive the wedge with ? A. A sledge hammer. Q. Did you drive it good and tight? A. Good and tight; as tight as I could drive it to do any good. In our work there we had to pass under this slip back and forth constantly. On the morning of the 26th I called on Mr. Rowe again for props, and asked him why he did not send them down. He said he had; said he would look the matter up. I got some props myself in room No. 1 after the left north, a work-out room. I found some unused props in the gob and set them under this slip. Q. Did you think you had it safe? A. I did.
Again,, he testified as follows:
Even if the foreman had directed him to work in this dangerous place without advising him .of the danger, and he afterwards became aware of that fact, he was guilty of -contributory negligence in not propping the roof or abandoning the.work. Olson v. McMullen, 34 Minn. 94 (24 N. W. 318); Naylor v. Railway Co., 53 Wis. 661 (11 N. W. 24); Perigo v. Rail Co., 52 Iowa, 276. The employee ‘is bound to take notice of the ordinary operation of familiar natural laws, and to govern himself accordingly. Tailing to do so, he takes the consequences. He can not charge such consequences upon the master, when he can see that which is open and apparent to a person of ordinary intelligence.’ Swanson v. Railway Co., 68 Minn. 184 (70 N. W. 978). The doctrine that the master must provide a safe place has no application to a case where the place becomes unsafe during the progress of the work. As to such danger, the law only requires reasonable care to employ competent men and provide suitable material.
Section 2491 of the Code makes it a crime for anyone to neglect or refuse to prop or support the roof or entries of a mine under his control. The duty of doing the propping was upon the employees in this case, and unless the defendant’s failure to supply the necessary props was the proximate cause of the injury, there can be no recovery. Assuming, however, that defendant was negligent in not sending down the necessary props upon request, and that this was the proximate cause of the injury which resulted in the death of Lammey, still we think there should be no recovery for the reason that both father and son knew that the props had not been sent; that the place, although propped as stated, was unsafe, and known to them to be unsafe, and that with this knowledge they both continued to work in this unsafe place, ¡without protest, when they might, at any time, have ceased their employment without fear of displeasing their employer or of discharge from their work. They determined their own hours of work, when they would commence and when they would quit, and the operators had no control over them in this respect. The-son testified that he knew the place was unsafe; that there was a “slip” which made it so; that he had this knowledge, which every miner of experience knew, from the time that he first discovered it, which was as soon as they reached it down to the time the father was killed. During that time father and son had driven the face of the mine
In Oleson v. Coal Co., supra, we said:
The employee ‘is bound to take notice of the ordinary operation of familiar natural laws, and to govern himself accordingly. Failing to do so, he takes the consequences. He can not charge such consequences upon the master, when he can see that ydiich is open and apparent to a person of ordinary intelligence.’ The doctrine that the master must provide a safe place has no application to a case where the place becomes unsafe during the progress of the work. As to such danger the law only requires reasonable care to employ competent men and provide suitable material. . . . There was no evidence therefore of any negligence on the part of defendant and there was uncontradicted evidence of the contributory negligence of plaintiff.' Under such circumstances it was proper for the court to direct a verdict for defendant.
In Mammoth Coal Co. v. Bublis, 83 Ark. 567 (104 S. W. 210), the court said:
Coal Co. v. Estievenard, 53 Ohio St. 43 (40 N. E. 725), from the Supreme Court of Ohio, is in facts very much like the one at bar, and in that case it is said:
In view of our holding, it is not necessary to discuss the question of assumption of risk. At times it is difficult
Our examination of the case leads to the conclusion that the trial court was right in directing the verdict, and Jits judgment must be, and it is, affirmed.