Lone Star Lignite Mining Co. v. Caddell

HODGES, J. In 1909 the appellant owned and was operating a lignite mine in Hopkins county, and on the 13th day of July of that [842] year John Caddell, one of its employes, was killed while at work in the mine by the caving in of the earth from above. Appellees are the widow and child of Caddell, and bring this suit to recover damages sustained by reason of his death. The negligence relied on as a ground of recovery is the failure of the appellant to furnish the deceased a safe place in which to work — the failure to exercise proper care in propping the roof of the mine so as to prevent its caving in while he was performing his duties. The testimony shows that the mine had been worked for some time, and considerable excavations made. It was divided up into compartments which the witnesses called “entries” and “rooms.” One was designated as the “main entry,” and the others by numbers, differing according to location. The employes consisted of the miners, who dug coal by the ton; the timber crew, whose duty it was to prop the roof of the mine as it was needed during the progress of the work; and the trackmen, who were employed to lay the track in the mine over which the coal was hauled, and to keep it clear of obstructions. J. A. Gray, a man of extended experience in mining, was the general foreman or mine boss, a man by the name of Warner was the foreman of the timber crew, and G. R. Cranford was the boss of the trackmen, and under him Caddell worked. The fall of the earth which caused the death of Caddell occurred in the eighth entry. The roof in this portion of the mine had not been propped. It is apparent from the testimony that propping the roof was not regarded as necessary till it began to slough ofl: and fall. This condition did not necessarily indicate that the roof had become dangerous and unsafe, but that it would become so in the course of time if not properly supported. The roof in the eighth entry had been sloughing for several days, and the timber crew had commenced to brace it. On the day of the accident the falling of slate and earth in this place assumed such proportions that it became questionable whether or not the timber crew might with safety proceed with their work of supporting it. At the noon hour on the day Caddell was killed, Gray, the mine foreman, and Warner, the timber boss, went down into the mine for the purpose of making an inspection in this particular locality. Witnesses for the appel-lees testified that upon his return Gray told the employfis, among whom was Caddell; that he had made an examination, and that the mine was safe, and directed them to go on with their work. This, however, is denied by Gray. About 1 o’clock p. m. on that day Caddell, together with Cranford, his immediate superior, Gray, and some employes, returned to the mine for the purpose of resuming work. When they reached the eighth entry, they found that the track at that place was covered with debris which had fallen some time during the day; and Caddell, Cranford, and one other employé began to remove it. Gray and Warner were both present, and, according to witnesses who testified for appellant, Gray was making a further investigation of the condition of the roof by driving his chisel into it at various places, and sounding to see whether or not it was solid. While thus engaged, a crack appeared in the slate above, and, before the employés could get out of the way, a large quantity of earth fell, killing Caddell and partially burying another employé. Gray discovered the crack indicating that a fall was probable, and gave the warning, but too late for Caddell to escape. The principal defense relied on in this, appeal is that the rule of law making the master liable for a failure to furnish the servant a reasonably safe place in which to work has no application under the facts of this case. Complaint is made in the first group of assigned errors of the refusal of the court to give a peremptory instruction in favor of appellant, and in submitting to the jury the issue of negligence as a basis of liability. The proposition asserted is as follows: “The safe place rule does not apply where in a mine the workmen were engaged in timber-ing a dangerous place and had been temporarily stopped by the sloughing from the roof of such quantities of shale and slate as to make the continuation of the work appear dangerous, and, while the foreman was testing and inspecting the roof for the purpose of determining whether it was safe to go on with the timbering, it suddenly and without warning caved in and killed the servant.” The principle of law invoked by counsel for appellant seems to have found its application in determining the master’s duty with reference to those servants who are at the time engaged in the business of making safe a place that is unsafe, or those who, by reason of the fact that such work is being done, are put upon notice of an unsafe condition of the place in which to work. As to those servants who are engaged in repairing an unsafe place, the rule finds its rationale in the doctrine that the servant assumes the risks ordinarily incident to his employment, and that a danger existing by reason of the unsafe condition of the place is one of the necessary incidents to the service of making the place safe. After all, the rule rests upon the hypothesis that the danger is, or should be, known to the servant, and for that reason the risk is regarded as one which he assumes. 1 Labat, Master and Servant, §§ 29, 268. The argument of counsel for appellant upon the above proposition proceeds upon the assumption that Caddell was one of the servants engaged at that time in repairing the unsafe condition of the mine roof. .The assumption is not justified by the facts. The business of propping the roof and preventing its caving was distinctly that of the timber [843] crew, of which Warner was the boss. Cad-dell was not a member of that crew, and it was no part of his business to assist in that work. He was a trackman, working under the supervision of another boss and in an entirely different department of the service. He was there upon that occasion, according to the testimony of witnesses for the appel-lees, for the purpose of performing a service in the line of his duty — that of removing obstructions from the track — and was not expected to take any part in propping up the roof. It cannot therefore be said that he was a servant engaged at the time in making safe an unsafe place. There was abundant evidence to support a finding by the jury that the appellant was guilty of negligence in not sooner placing props under the roof at this particular place. The testimony shows that the roof had been falling there for several days, and it seems to be conceded that when this condition arises, prudence dictated that it should be supported. The contention that Caddell assumed the risk of the dangerous condition of the place must rest upon the ground that it was a danger of which he knew. The proof shows that Cad-dell was an inexperienced man, and had been at work in the mine only a few months. He knew that the earth was falling at this particular place, and had, prior to the time he was injured, expressed some fear regarding its safety. But the testimony also shows that, after he had expressed those apprehensions, Gray, the mine boss and an expert in such matters, had assured him, together with other employes, that he had made an examination, and that it was safe, and had ordered them to return- to work. Under that state of facts, we do not think it can be said that Caddell assumed the risk, or was guilty of contributory negligence as a matter of law. G., C. & S. F. Ry. Co. v. Duvall, 12 Tex. Civ. App. 348, 35 S. W. 700; Oil Mill Co. v. Farmer, 56 Tex. 301; T. & N. O. Ry. Co. v. Kelly, 98 Tex. 123, 80 S. W. 82; Id., 34 Tex. Civ. App. 21, 80 S. W. 1076; Shadford v. Railway Co., 121 Mich. 224, 80 N. W. 30; Commerce Milling & Grain Co. v. Gowan, 104 S. W. 916; Rowden v. Mining Co., 136 Mo. App. 376, 117 S. W. 695. The servant, in order to be charged with an assumption of the risk upon the ground that he knows of the existence of the defect, must not only know of the situation, but also of the danger that is likely to result from it. Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, 91 S. W. 460; Railway Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L. R. A. (N. S.) 837; Robertson v. Hammond Packing Co., 115 Mo. App. 520, 91 S. W. 161; M., K. & T. Ry. Co. v. Dumas, 93 S. W. 493; 1 Labat, Master and Servant, § 296, and cases cited. Caddell may have known that the roof was sloughing off, and that it should be propped, but the jury had a right to conclude that he was not guilty of a want of proper care in relying upon the statements of an expert miner that the situation- was not dangerous and that he might safely pursue his work at that place. The fourth and fifth assignments of error complain of the admission of certain testimony which, it is claimed, was prejudicial to the appellant. The bill of exception shows that Davis, a witness for the appellees, had testified that in his opinion the timber crew was about six weeks or two months behind the “entry men” (probably meaning the miners) with the work of timbering the mine. The witness was then permitted, over the objection of counsel for appellant, to say that the space where the accident occurred could have been timbered in two or three days. The objection to this testimony was that there were no allegations in the petition charging that appellant was behind with the timbering, or that such negligence was the proximate cause of the injury, that the evidence showed that this entry was timbered to within a few feet of where the accident occurred, and the testimony objected to was irrelevant and immaterial. We do not think the objections were tenable. Appellant had by its general denial put in issue all the material facts alleged, necessarily including those upon which the appellees relied as charging appellant with negligence in not having timbered this entry. Davis had previously testified, without objection, that in his opinion this falling of the earth could have been prevented had the timbering been done in time. We think his answer which was admitted over the objection was relevant as tending to show that the appellant was negligent in not having done this sooner. Its relevancy was strengthened by the testimony of Gray, afterwards given, in which he stated that in his opinion the accident was the result of what the miners call a “squeeze”; that is, a sloughing of such proportions that no amount of timbering could have prevented it. The third bill of exception shows an objection to the following question: “Q. I will ask you if Mr. Gray (appellant’s mine boss) did not state to you in the conversation down there at the new mine that, if Mr. Watelsky (the owner) had let him have his way, he could have had the mine sufficiently provided, and that John Caddell would have been a live man to-day?”' Objection was made to the witness’ answering that question upon the ground that it appeared from the testimony that Gray at the time he is alleged to have made that statement was no longer in the employ of the appellant, and that appellant could not be bound by any admission or statement made by him under such circumstances; that the testimony was improper and incompetent, and not admissible even for purposes of impeachment. The objections were overruled by the court, and the witness answered, “Yes,” The qualifica [844] tion appended by tbe court to this bill -of exception shows that this testimony was admitted after Gray had testified on cross-examination that he had not made such statements as those inquired about, and that this question and answer were permitted only for the purpose of impeaching Gray, and it was so stated by counsel for appellees in the presence of the jury. Gray had testified previously as an expert in such matters and had stated that the accident was 'the result of a general “squeeze” and extraordinary sloughing of the earth, which could not possibly have been prevented by any amount of timbering. His testimony would tend to show that Caddell was injured as the result of an inevitable accident, for which the appellant could not be held responsible. The effect of the statements attributed to him by Davis was to impeach Gray in that respect; and upon that issue at least we think the testimony of Davis was material and proper. Finding no error in the judgment, it is accordingly affirmed.