Western Coal Mining Company v. Burns

Hart, J., (after, stating the facts). The sole ground relied upon for a reversal of the judgment is that the court should have directed..a verdict for the defendant on the ground that the plaintiff knew the distance from the rails to the gob wall, and assumed the risk of injury from getting his foot caught in the space between the rails and the gob wall. The general rule is that an employee assumes the ordinary risks incident to his employment and such extraordinary risk as is obvious to an ordinarily observant person, or which is patent to one having experience in the business in which he is engaged. Mama Coal Co. v. Dodson, 141 Ark. 438; Moline Timber Co. v. McClure, 166 Ark. 364, and Western Goal & Mining Co. v. Nichols, ante, p. 346. Under the evidence adduced, it cannot be said as a matter of law that the plaintiff assumed the risk of getting his foot caught between the rails and the gob wall while he was pushing out the car of coal. It is true that he was a miner of experience and that he built the gob wall himself; but these facts do not conclusively show that the danger of getting hurt in the manner described by the plaintiff was appreciated by him when he built the gob wall, or that it was so obvious and patent to one of his experience that he will be deemed in law to have known and appreciated it. In the very nature of things the relation of master and servant makes the servant place reliance upon the judgment of the master or the foreman appointed by him to direct the servant about his work. It is the duty of the master to exercise ordinary care to provide a safe working place for his servants. In the case at bar, it became necessary to move the accumulated rock so that the miner could proceed with his work of digging the coal and loading- it on the car. The plaintiff thought it advisable to load the rock on the car and haul it out of the mine. The foreman thought that this would cost too much, and directed the seiwant to pile the rock up and make what is called a gob wall. The foreman took the large rock and started the wall himself. He thereby indicated to the plaintiff that this was a safe distance from the track for the gob wall to be built. It became the duty of the plaintiff to build the gob wall on the-line shown him by his foreman. .It is true that the plaintiff, in building the wall, must have noticed how far the gob wall was from the rails, but we do not think that it should be said as a matter of. law that he: must have anticipated that'he might get hurt in the way the evidence showed he was injured. It is insisted that, if he had kept his feet between the-rails, he would not have got hurt. This may be true ; but it was the duty of the plaintiff to push the car of coal through- the entry, and, in doing this, he had to push the .car up-grade at one place. It may be that the , car was in danger of slipping back, and that he placed his foot between the rails and the gob wall in order- to better brace himself. 'Be that as. it may, he testified that, in pushing the car of coal up-hill, he placed his foot there, and that it got caught so that, he--could not extricate it, and that the car of coal finally ¡rolled back and crushed his foot. - ■ ' It -is also, true that the evidence for the defendant shows that the gob wall at this place was two feet from the rails, but this evidence is contradicted by the testimony of the plaintiff and of his witnesses. The distance of the gob wall from the track was a ¡question of fact, and the jury was the judge of the credibility of the witnesses, and, by its verdict, evidently believed the plaintiff and his witnesses.- The testimony of the witnesses for the plaintiff as to the distance between the .rails and the gob wall, and-as to the fact that the plaintiff caught his foot in that space, was as to. matters of which'the witnesses had-personal knowledge.. ■ Their - evidence - was ; necessarily of' a substantial character, and, having been accepted as true by the jury trying the case, we are not' at liberty to reverse or set it aside upon appeal. It follows that the judgment of the circuit court must be affirmed.