81 Wash. 73 | Wash. | 1914
This action was brought by the infant sons of Matt Lindquist, to recover damages on account of the death of their father, which occurred in the. coal mine of the defendant. The method of mining was to open chutes so as to divide the coal seam into pillars. These chutes were ten feet wide and were driven up the vein from the main gangway at right angles thereto and about thirty-five feet apart. These pillars were divided into rooms or sections by driving cross cuts four feet wide from chute to chute every sixty feet, each section being, therefore, thirty-five by sixty feet. Each chute was divided by timbers into two parts, the one being used as a chute for running the coal out of the mine and the other as a man way.
Lindquist and his partner were experienced miners, and had been working in the section where the accident occurred for some time. The chute on the right-hand side of the section had caved and was out of use, so that it was necessary to bring all of the coal out of the left-hand chute. The miners had, in consequence, began at one side of the section and were mining it over to the other side. It was the custom in that mine to timber with uprights or props, with caps to support the roof. On the afternoon before the accident occurred, Lindquist and his partner observed some evidences of a squeeze in the upper right-hand corner of the section.
The case is predicated upon several charges of negligence. It was brought to trial upon general denials and affirmative defenses charging contributory negligence and assumption of risk, and that the plaintiff’s intestate and the foreman were fellow servants. When the plaintiffs had rested their case, the court entertained and allowed a motion for a nonsuit. From a judgment of dismissal, this appeal is prosecuted.
The court, in passing upon the motion for a nonsuit, was of opinion that the testimony of one of the witnesses called on behalf of the plaintiffs exonerated the defendant from all blame. We have read the testimony of the witness and, without reviewing it, we are satisfied that it will not bear the construction put upon it by the trial judge. Admitting that it is not in entire harmony with plaintiffs’ theory of the case, it is, nevertheless, no more than the testimony of one witness. It was the province of the jury to weigh and harmonize it, if possible, or to accept it or reject it, as they saw fit, considering all the facts and circumstances of the case.
It is urged that, although the deceased would have been justified in following the judgment of the foreman, under the rule announced in Beseloff v. Strandberg, 62 Wash. 36, 113 Pac. 250; Cox v. Wilkeson Coal & Coke Co., 61 Wash. 343, 112 Pac. 231; Christiansen v. McLellan, 74 Wash. 318, 133
It is an undoubted rule that, where the place of work is being constantly changed as the work progresses, as in the construction of buildings and the like, a workman will be held to have assumed the risks incident to his labors; but this rule is not without a very important and reasonable exception. It often happens, in the prosecution of a particular piece or kind of work — as for instance, mining — that the safety of the place will become an object of inquiry calling for an expression of judgment. We have held repeatedly in such cases that a workman who follows the assurance and judgment of the master will not be charged with an assumption of risk or be held to be guilty of contributory negligence as a matter of law. The reason is obvious. It inheres in the very doubt that called for the original inquiry. The assurance is not that one blow may be struck or one shovel full of earth may be turned in safety, but that it is safe to remain in' the questioned situation long enough to accomplish the thing to be done, which in this case was to remove the coal from that part of the pillar where the squeeze occurred. The foreman, and consequently the master, is charged with knowledge that it would take time, possibly hours of time, to do the things he said could be safely done. Now, when the workmen proceeded in the usual and customary way, propping the roof with posts and caps as they went, they should not be charged; for the assurance of the foreman implied that they should do the work safely in the way adopted in that particular mine. Certain Colorado cases are cited which hold a contrary rule. They are not in harmony with
The next contention of the appellants is that defendant used an improper and dangerous method of mining, in that it did not provide for cribbing instead of posts and caps; and in that it did not keep the chutes open on both sides of the section being worked so that coal might be removed from each side of the section, or first from one side and then from the other. Whether it was the duty of the master to provide timber for cribbing under the circumstances developed by the testimony, may well be questioned. As we read the record, the mine of the defendant was not what is called an unsafe mine. The method employed, as testified to by witnesses who have been familiar with the mine for more than twenty years, is to support the roof with props or posts, with caps. The duty of a master is to meet those conditions which suggest danger to men of ordinary prudence and judgment. The testimony goes no further than to indicate that, if cribbing had been used, the accident would not have happened. Such testimony is always given in the light of what has occurred, and is of little value in determining whether, when considering the character of the ground being worked and the past history of the mine, the squeeze should have been anticipated and guarded against by crib
Whether it was proper mining to remove the coal from one side of a section to the other so as to leave no natural support across the whole face of the roof, is, we think, a proper question for the jury. Neither would the fact that the chutes to the one side of the section had caved in bind the workmen to an assumption of risk or make them guilty of contributory negligence. At common law, they no doubt
Whether the danger was so obvious that a man of ordinary prudence in the exercise of due caution would have refused to obey the direction of the foreman, and whether the manner of removing the coal from the section in the way in which it was removed was a negligent way, are issuable facts to be determined by a jury.
For the reasons assigned, the case is reversed and remanded with directions to take the verdict of a jury.
Crow, C. J., Gose, Ellis, and Main, JJ., concur.