Montegard v. Donk Bros. Coal & Coke Co. ( 1916 )

Mr. Justice McBride

delivered the opinion of the court.

2. Mines and minerals, § 183^*—when existence of relationship of fellou>servam,ts between mine coal drivers question of fact. In an action by a mine coal driver for damages for personal injuries alleged to be due to the negligence of another coal driver, where it was undisputed that both coal drivers worked in the same west entry, plaintiff taking loaded cars from the western division of the entry east to the main south entry, and the other driver from the eastern division over the same track, each obtaining empty cars at the main south entry, held that the existence of the relationship of fellow-servants was one of fact. 3. Mines and minerals, § 80*—when mine owner has constructive notice of obstructions on track of entry in mine. A mine owner must be deemed to have constructive notice of the existence of an empty, unlighted and unguarded car on the track in the eastern division of a mine entry at the time of the injury to a car driver proceeding from the western division of an east and west entry to a main south entry with loaded cars, where the entry, which was unlighted, was divided into two divisions, the western one of which was in charge of the injured servant as car driver and the eastern in charge of another car driver, and it was the practice for each to take loaded cars to a “parting” at the mouth of the main south entry over the single track and obtain empty ones, and the only method of delivering empty cars to the rooms off the east and west entry where the other driver worked was to bring out the load to the entry track, push it clear of the switch, and then run the empty into the room, and, while these changes were being made, either the loaded car or the empty was obstructing the track of the entry. 4. Damages, § 123*—when judgment for fracture of both legs not excessive. A judgment for $3,000 in favor of a mine car driver for permanent injuries consisting of oblique fractures of both legs, still causing pain at the time of the trial four years after the injury, and decreasing plaintiff’s height one inch, held not excessive.