Prairie Creek Coal Mining Co. v. Kittrell , 106 Ark. 138 ( 1912 )

Wood, J.,

(after stating the facts). The uncontroverted evidence shows that appellant was negligent in not making proper inspection of the mine. The negligence of appellant in this respect Avas sufficiently set forth in the complaint.

The undisputed eAÚdence shows that there was a dangerous place in the entry where appellee was injured, caused by the shooting of coal, that could have been discovered by the exercise of ordinary care upon the part of appellant’s inspector. It is shown that the dangerous condition of the overhanging coal could have been-discovered by the ordinary tapping of the same Avith the hand or Avith any ordinary instrument; that if such an inspection had been made the defect would have been discovered by the drummy sound given forth.

The evidence also conclusively shows that the defect could have been discovered by the exercise of ordinary care in observing for defects with the lighted lamp proffided for such purposes. It is not shown that appellant’s inspector made any such effort to discover the defects. He simply says that he inspected the entry “for loose rock and loose coal and such things as that,” but he does not show hoAV he made the inspection. He does not say that he looked for cracks Avith his lamp or that he tapped on the ribs of coal to ascertain whether same were loose or not. In short, there was no proof whatever on the part of the appellant to show that any competent inspection was made; while the testimony on behalf of the appellee, uncontroverted, shows’ that any ordinary inspection of the dangerous place where appellee was injured would have discovered the defect. The proximate cause of this injury therefore is the failure upon the part of the appellant to make the proper inspection of its mine and the failure to exercise ordinary care, in this particular, to provide appellee a safe place in which to perform his duties as driver, and the court might have so declared as a matter of law.

Even if it be conceded that the issue of assumed risk was for the jury under the evidence, still the court did not err in refusing appellant’s prayer No. 10^*, in which it sought to have that issue submitted, because the first part of that prayer sought to have the jury also determine as to whether or not the appellee, under the evidence, was charged with the master’s duty of inspecting and reporting on the condition of the ribs of coal for the purpose of making his own place of work safe. We are of the opinion that under the undisputed evidence this was not a question for the jury, and therefore the court did not err in refusing the prayer, even if the latter part of it, standing alone, be correct.

The appellant, in its brief and oral argument, insists that the duty devolved upon appellee to make an inspection and report any defects or dangers discovered to the proper authorities. In other words, that it was his duty, under the evidence, to inspect the mine to see that the place where he was working was'safe, but we are of the opinion that the undisputed evidence shows that no such duty devolved upon the appellee. As we understand the evidence, his only duty was that of exercising ordinary care for his own safety while in the performance of his duties as an employee, but certainly there is no testimony to show that the appellant had imposed or devolved any duty upon him to make an inspection of the mine to see that same was safe. None of the master’s duty, as we view the evidence, was imposed upon the appellee.

The only question about which there was a dispute or about which reasonable minds might draw different conclusions from the facts presented is as to whether or not the appellee exercised ordinary care for his own protection in the place furnished him by the appellant for the performance of his duties. In other words, whether there was any negligence on the part of appellee that, concurring with appellant’s negligence, contributed proximately to his injury. This question was submitted to the jury upon instructions given at the request of the appellant which were more favorable to it than, under the evidence, it had a right to- expect. For instance, in instruction No. 7, the court told the jury that “if the defendant relied upon the plaintiff as driver to keep a lookout for dangers in the entry, and if the plaintiff knew that such was the custom of the mine, and if he knew that the defendant did rely upon him to observe, or keep a lookout for defects or evidences of coal becoming dangerous so that it might fall, and if the plaintiff, knowing that the defendant was relying upon him to make report of any dangerous condition, failed to use ordinary care to keep such lookout in said entry, and if he failed to report the same, and if his injury is due to his failure to keep such-lookout, and properly report any danger, then he is guilty of negligence and can no"t recover.”

The eighth instruction given at the instance of appellant likewise presented substantially the same idea. These instructions were’calculated to cause the jury to conclude that appellee had some duty to perform in the way of making observations or inspections of the mine in order to discover any defects existing and to report same in order that the place where he was working might be made safe. But, as we have said, this was not the duty of appellee at all under the evidence, and therefore the instructions were more favorable to appellant than the proof warranted, and hence it has no cause to complain.

The court granted appellant’s prayer No. 12, which correctly submitted the question of contributory negligence. That instruction is as follows: “If the defect, if there was one, was open, patent, and of such a nature as to be discoverable by any driver going along the entry in the discharge of his duties, and if the plaintiff, by the use of his eyes, or by ordinary care, could have easily seen said defect, and if he knew and apprehended the dangers and failed to exercise ordinary care in avoiding the same, and if he was injured thereby, he can not recover.”

We think the question of contributory negligence was one for the jury under the evidence, and that this instruction properly submitted it.

The appellant complains of the giving of the seventh instruction at the instance of appellee, which is as follows:

‘ ‘ The plaintiff had the right to presume that the defendant had discharged its duty to him in making its entry a reasonably safe place in which to perform his duties; and plaintiff was not required to inspect said rib or the side of said entry, or to search for defects therein, but was required to use ordinary care for his own safety, such care as a reasonably prudent person would exercise under like circumstances and conditions.”

The instruction was in accord with the undisputed testimony on the question of inspection. The court was justified, under the undisputed evidence, in telling the jury, as we have already observed, that the plaintiff .was not required to make any inspection or to search the mine for defects. The verdict of the jury was responsive to the undisputed evidence on this issue, and appellant has no right to complain if other instructions given in its behalf, that should not have been given, are seemingly in conflict with this. The error consisted in granting appellant’s prayers and was therefore invited by it, and it will not be heard to complain.

What we have already said disposes of the ruling of the court in refusing the ninth and other prayers of appellant for instructions. The appellant attempted to have the cause submitted upon the erroneous theory that there was evidence to warrant the conclusion that some duty devolved upon appellee to make an inspection of the mine.

The instructions given at the instance of the appellee were, for the most part, bottomed on the law as declared by this court in the cases of Mammoth Vein Coal Co. v. Looper, 87 Ark. 217, and Bauschka v. Western Coal & Mining Co., 95 Ark. 477.

The appellant complains of the instruction on the measure of damages, which is as follows:

“If the jury find for the plaintiff, they will assess his damages at such a sum that will compensate him for the bodily injury sustained, if any; the physical pain and mental anguish suffered and endured by him in the past, if any, and that which will be endured in the future, if any, by reason of the said injury; the effect of the injury on his health according to the degree and probable duration of the same, if any; his loss of time, if any; and his pecuniary loss from his diminished capacity for earning money through life according to what you find his probable expectancy, if he had not received the injury complained of, if any, and the amount of money expended for medicine and medical attention, if any; and from these as proven from evidence assess such damages as will compensate him for the injuries received.”

The appellant contends that appellee should not recover for the full expectancy of his life before the injury occurred, when the evidence shows that by reason of the injury he will not live more than six months. The appellee had a right of action against appellant as soon as the injury occurred, for all damages he had sustained, caused by the negligence of appellant. The true measure for loss of earning power is the present value of these damages during the expectancy of appellee’s life had the injury not occurred. By reason of the injury appellee was rendered a helpless and hopeless paralytic with a total loss of earning power for the full period of his expectancy. Certainly this is one element of his damages. Another element is the bodily pain and mental anguish on account of his condition, which he must endure as long as lie lives. Other elements are also mentioned in the instruction.

The instruction was in. accord with the rule and principle approved by this court in the- recent case of St. Louis, I. M. & S. Ry. Co. v. Brown, 100 Ark. 107, and St. Louis, I. M. & S. Ry. Co. v. Brogan, 105 Ark. 533.

Appellant complains of the rulings of the court in admitting testimony. ' We have'examined these and find no error prejudicial to appellant.

The appellant also assigns as error the rulings of the court in refusing to grant its motion to quash the service, and in refusing to grant motions to have the complaint made- more specific, and to strike out certain portions thereof. These assignments are the proper subjects for bills of exceptions and they are not made grounds of thé motion for a new trial, and hence we can not review them. Danley v. Robbins, 3 Ark. 144; Steck v. Mahar, 26 Ark. 536; Merriweather v. Erwin, 27 Ark. 37; Lambert v. Killim, 27 Ark. 549; Worthington v. Welch, 27 Ark. 464; Phillips v. State, 62 Ark. 119; Wise v. Martin, 36 Ark. 305.

Affirmed.

* Instruction No. 10, asked by appellant.

“The court instructs the jury that the defendant had the right to require the plaintiff as driver to keep a lookout for any dangers in the way of loose coal or other loosened objects while driving in said entry, and if the plaintiff in the discharge of his duty as driver knew that the company so relied upon him to report the condition of the entry and the coal thereon, then the plaintiff as to the condition of that coal was himself the master, and he can not recover. The plaintiff would be denied a recovery if the crack or defect in the coal was so open, patent and obvious that one passing could not avoid seeing or knowing about it, and the plaintiff must be held to have known it, and in that event, he assumed the risk of such defect and can not recover.”