Citation Numbers: 183 Iowa 565
Judges: Evans, Gaynor, Ladd, Preston, Salinger
Filed Date: 1/12/1918
Status: Precedential
Modified Date: 7/24/2022
The plaintiff, who had been employed by the Gibson Coal Mining Company about 6 years, and,' after February, 1915, as a eager at the bottom of the shaft, was injured on September 21st of that year. He brings this action, not against his employer, but against the superintendent of the mine, a.nd bases his action on the claim that defendant was negligent in that, without warning, he
The plaintiff testified that, at about 2:80 o’clock in the afternoon of September 21, 1915, plaintiff sent a car loaded with coal up on the north cage. Habelitz called from the ground landing and told him to clear the bottom of the south shaft, as he wished to send down a carload of ties. Clearing the bottom meant to take an empty car therefrom and ring the bell tAvice, thereby signaling that everything was ready for the cage to rise. Plaintiff then went to Avork at the pump, and, after being at that a while, noticed that the trip (train of cars) was coming in on the cable, and immediately climbed across the north shaft; and, as he did so, the cage came on him from above, injuring one arm severely, and pressing him part way in the water of the sump. This cage was descending from the tipple; and, as it reached the surface, defendant, wishing to go into the mine, entered the cage with the empty car, and directed Habelitz to let him doAvn; and this Avas Avhat was being done when the collision occurred.
A person could pass from one side of the shaft to the other when the pump was not running; but when pumping, a stream of hot water fell from the exhaust pipe, and hot steam escaped, so .that plaintiff could not pass through when the pump was being operated. The defendant kneAv this, and had promised repair; but none had been made, though a mechanic had been working at the pump, and on the day in question had directed plaintiff to start it and see if it would work. He could have stopped it and gone that way, but would have had to wait for the hot water to cease dropping, and the hot steam to dissipate. He could have gone by the other passageway. His excuse for doing neither was that, after hearing or seeing the approach of the trip (train of cars), prompt action was necessary in order to jerk the rope and kick the latch, and thereby prevent the cars from piling up, and he was compelled to cross the shaft to reach the east side in time to perform this duty, and had been so doing since February preceding.
Master and servant : contributory negligence: • passing along known dangerous way. “When I was injured, I did not look upwards at any time to see if the cage was coming down, because, if I had looked up there, there voould be more dangpr than the way T was — more danger than climbing across the opening, because I would be liable to- be cut in Pioo in looking %vp' the shaft. I didn’t look up. When I went to get across, I just started across. There was no way I could see the cage coming down until it got down. There was no way to tell when the cage was coming down until it comes down so low you can see it. Small chunks of coal or dirt fall off the cage only when the car is dumping, then lots of times it comes back. This is when it is on the top of the tipple. In the act of dumping, particles of coal will fall off and fall down.”
Notwithstanding such situation, he had been crossing this bottom since February, and probably so did at this time, rather than in reliance on the custom. If so, he was negligent therein, as has been declared in numerous decisions. McDonald v. Rockhill Iron & Coal Co., 135 Pa. 1 (19 Atl. 797); Rush v. Coal Bluff Min. Co., 131 Ind. 135 (30 N. E. 904). See Smith v.Kestner & Hecht Co., 157 Ky. 282 (162 S. W. 1133); Powell v. Ashland Iron & Steel Co., 98 Wis. 35 (73 N. W. 573).
In Contri v. Hollingsworth Coal Co., 143 Iowa 115, a miner was held to have been negligent in passing over the cage. The fact that what plaintiff did was in direct violation of an express prohibition of the statute, however, puts
3. Mines and minerals: negligence in passing oyer shaft bottom. “At the bottom of each hoisting shaft there shall be constructed a safe and convenient traveling way around the shaft for employes and animals, and it shall be unlawful for any person to pass across the shaft bottom in any other manner than by the traveling way herein contemplated; except such employes as may be necessary to perform the work at the bottom of the shaft or those engaged in making repairs.”
Unless work is to be done or repairs made, there would seem to be no reason for making the exception; for crossing the shaft bottom would be quite as dangerous for those engaged in work about the bottom, such as a eager, as for miners generally. Familiarity with the situation would not shield from danger, where no one can see the
There can be no occasion for others than those necessary to perform work at the bottom, or engaged in making repairs, to cross the shaft bottom; and this appears from the particularity in which a traveling way around the shaft is exacted. The bottom intended is that lowest down — beneath the cage. The plaintiff, in what he was assigned to do, was neither engaged in making repairs nor in performing work at the bottom of the shaft, and therefore was not within the class excepted from the operation of the statute. His duty to obey the law was not obviated by a custom the observance of which might have enabled him to do what he undertook in safety. Nor ivas he excusable in crossing, in violation of the statute because of the inconvenience of going around the shaft, or what might happen were the rope not pulled in time to avoid the piling of cars. His duty was to obey the law, as expressed in this statute; and in not so doing, he was guilty of such contributory negligence as to defeat recovery. The court rightly directed a verdict for defendant to be returned. — Affirmed.