McDonald v. Rockhill Iron & Coal Co.

Opinion, Mr. Justice Green : The plaintiff was a miner of coal in the employ of the defendants, and was injured while at work for them in their mines. His injury was received while he was attempting to cross the bottom of a shaft through which the coal was taken from ■ the mine to the surface. The shaft was about 80 feet in depth, and was provided with two cages, in one of which the coal was lifted up in cars, while at the same time, in the other, an empty car descended. The coal was brought to the foot of the shaft in cars by drivers, and placed on the cage. Notice to hoist was given bjr the driver to a person at the top, whose duty it was •to start the machinery for hoisting, and thereupon the cage containing the car was elevated to the surface, and at the same time an empty car descended in the other cage. The movement of the cars in this way occupied a very brief space of time when they were running regularly; considerably less than a minute was all that was required for the up and down movement. The plaintiff was going to his work through the mine on the morning of the accident, and it was necessary for him to pass the shaft at the bottom to reach his destination. There was a man-way opened around it, through which the men passed, some — 11 — times, but more frequently the habit of the most of them was to pass directly through the shaft, either under the cages if they were elevated, or over them if they were at the bottom. The plaintiff, alleging that the track of the man-way was obstructed with ice upon this occasion, attempted to cross the shaft underneath the cage, which was not at the bottom at the time. He stepped into the sump, which was a depression of the surface about a foot to eighteen inches deep, at the bottom of the shaft, and was struck at the instant he did so by a descending cage, and for the injury thus received this action was brought. The defendant, on the trial, asked for a binding instruction that the plaintiff, upon his own testimony, was guilty of contributory negligence, and therefore there could be no recovery. This instruction was refused, and the error assigned, in this regard is the only one that will require our consideration. The plaintiff had been working for the defendant for several years, and was perfectly well acquainted with the shaft and all its workings. He testified that he had passed through the shaft many times, and had also frequently ridden up and down on the cages. His own account of the accident was thus given: “ Q. State whether or not you started to cross the sump, and then what took place. A. When I went to cross the sump, the cage came down, and I could not hear it. Q. You attempted to cross when the cages came down? A. Yes, sir. Q. What took place then? A. The cage came down on me. Q. What then? A. I knowed nothing afterwards, till one of the drivers hollered up that there was a man killed under the cage, and he hollered up to the top to hoist; then I knowed or heard no more afterwards, till I was taken out.” This was on his examination in chief. On cross-examination he testified : “ Q. Where were you when you looked up ? A. I was in this man-way, and I couldn’t see them, nor couldn’t hear them, [the cages,] I then looked up, and seen both of them was out of sight; then I took that was the shortest way to get through. Q. Then you came out of the man-way, and stepped down into the sump ? A. I just stepped right off in the man-way. I went on the man-way, and right there I stepped off. I was just right to the end of it, and I couldn’t get through there, and when I saw the cages were both out of sight I stepped right down into the sump. Q. Could you see up to — 12 — the end of the shaft? A. I could see only from the man-way up to the height of the timbers; that is all I co.uld see up, and that is all I could see, even if I was out of the man-way. I couldn’t see any further than the height of the timber. Q. How high would that be ? A.' I suppose that was eight or teu feet. Q. If you had looked up from the edge of the sump you could have seen up to the top of the shaft, could you not? A. I don’t believe that I could, except when the cages would be up. I could see then. Q. You could see the cages if they were there; if you couldn’t see daylight you would know the cages were there? A. Yes; I would know that the cages would be in the shaft if I couldn’t see daylight. Q. If the cage was swung in the shaft, and you would look up the shaft, and wouldn’t see daylight on that side, you would know that the cage was there, and that was what prevented you from seeing daylight-from above, was it not? A. If the cage was up, I couldn’t see daylight; I couldn’t see any daylight at all. Q. You looked up, and you couldn’t see any daylight? A. I couldn’t see any daylight, and I couldn’t see any cages. Q. Where did you stand when you looked up? A. in the man-way. Q. Did you look up when you stood under the cage? A. No, no; I had no time to look up, for as soon as I got off the man-way the cage struck me. Q. You stepped right from the man-way into the sump? A. Yes, sir; and as soon as I got there the cage struck me. Q. Then, as you stepped in the west edge of the sump, the cage struck you ? A. Yes; the cage struck me just as I stepped down off the man-way. Q. You had to take a step down to get into the sump? A. Yes; just perhaps a foot or eighteen inches, perhaps...... Q. When you stepped from the man-way into the sump you did not stop to look ? A. I hadn’t time to stop to look when I was hit by the cage. Q. You did not look just as you stepped in? A. I looked up just before I stepped down into the sump. Q. But just as you stepped into the sump, or were in the act of stepping into it, you did not cast your eyes upward to see if the cage might not be coming? A. Just as I stepped into it I was struck. Q. While you were in the man-way did you not hear the cages running? A. No; if I could I would not have went in there, but I would have waited till they were down. Q. You say your hearing is — 13 — good? A. My hearing is good. Q. So, if those cages had been running, you would have heard them? A. No man can hardly hear them, for they make no noise of any kind, and no man can hear them. Q. You have been around that shaft quite a while since those cages were running? A. Yes, sir; I have been around a good bit, and I have seen them going up and down many a time, and I never could hear them until they would come into sight...... Q. Do you know how long it takes a cage to come down ? A. I couldn’t tell you. Q. You don’t know how long it takes a cage to come down? A. I don’t know; I never timed it; maybe a minute, or it don’t take that long...... Q. Did you look to see if there was any cage down? A. I looked, and there were no cages down at all. Q. Did you look? A. Of course I looked; I looked up. Q. Where were you when you looked to see ? A. Didn’t I tell you when I looked I was in the man-way, and when I looked both cages were up; there was no cage down at all when I looked. Q. If the north cage was down, you would know the other was up, wouldn’t you ? A. I would know if one was down the other was up. Q- Then if you didn’t see either of them down you knew that the south cage was either going up or coming down ? A. I know nothing about that at all, whether they were working up or down; I didn’t know anything about that at all. Q. When you stepped into the sump you didn’t know whether the cages were swung or whether they were going up or down? A. If they weren’t swung, of course they must have been going. Q. If you had looked up just as you stepped into the sump, you could have seen the cage, could you not? A. Pidn’t I look up, and couldn’t see them ? How often are you going to ask me that question? Q. You looked up from the man-way, you say? A. Yes, sir. Q. But if you had looked up just as you stepped into the sump you could have seen the cage ? A. I told you I had no time to look up from the sump. I was struck with the cage the minute I set my foot in the sump. Q. Supposing you had time to look up, and you could have seen it ? A. I couldn’t see 'it till it came into sight, and I couldn’t hear it until it came into sight. Q. It must have been very close to you if it struck you just as you stepped into the sump; it must have been almost in sight ? A. I couldn’t tell you whether it was — 14 — or not. Q. If it struck you that instant that you stepped into the sump, it must have been very close to you? A. It may be, for all I know; it may have been 10 or 15 feet high, and they may come down very quick...... Q. You didn’t take much time to examine either the man-way or the sump, did you? A. I took time enough to go through. Just as I got into the sump, I was struck. I came there, and I couldn’t get through the man-way, and I wanted to get through as soon as I could to my work, and I had no time to take the time, as I thought it was all right. Q. You did not call up to the man at the top of the shaft, and ask if the cage was running? A. That was not my business at all...... Q. Had you both feet in the'sump when you were struck? A. Yes, sir; my whole body was in it. Just when I made a step to go through I was struck. Q. How were you knocked? A. I couldn’t exactly tell you, but it seems to me when it struck me on the head it just put me down that way; pushed my head right down between my feet. If I had been standing up straight, it would just come down fair on my head, and crushed me down and killed me at once. Q. You were in a kind of stooping position,, then, when it struck you? A. I was just in that position,—in a stooping position, of course. You would have to look down to see where you would step to, to walk to, and as a matter of course you were leaning forward a little, and you can’t walk under-ground, when it is dark, as you can on top of the earth, where it is light. Q. Why didn’t that cage crush you down to the bottom? ,A. The reason is, I guess, because I was leaning too much forward at the time it struck me, I guess, an,d it kind of doubled me up, with my head between my feet, or I would have been knocked lifeless. Q. Why, wouldn’t it have killed you, anyway, if the engineer hadn’t been very careful in letting down the cages ? A. The engineer that was there was very careful in letting them down in the morning, and that was the only thing that saved me; for if they had let them down as they run them during the day, I would have been gone. Q. It was because the cage ran slowly; that is the reason you were not killed, is it not? A. Yes, sir; from anything that I can tell, except the will of G-od...... Q. You were familiar with the running of the cages, weren’t you? A. I knowed how they went, and how — 15 — they worked. Q. You knew that if one cage was down the other was up ? A. Yes, sir. Q. And you knew that when the south cage was down that it would not be hoisted until the man at the top would get the signal from one of the drivers to hoist it? A. No; I knew that it wouldn’t be hoisted until they gave the signal to hoist it. Q. So, if you had waited but a minute or a quarter of a minute, you would have seen that the cages were running? A. Yes, sir; except sometimes they were working them cages when there are no cars at all there, they are working them up and down to see that they are all right.” On re-direct examination he testified: “ Q. You said you looked up from the man-way? A. Yes, sir. Q. If the cars were swinging, could you see them? A. Of course I couidn’t. Q. How far could you see if there was no cage in the shaft? A. Just the height of the timbers. Q. How high is that? A. I suppose about 9 or 10 feet.” The foregoing quotations are the entire substance of the plaintiff’s personal testimony. No other witness but himself testified to the very facts of the accident. Other witnesses for the plaintiff testified to other facts occurring immediately before and just after the accident, but, as to the’ exact circumstances of the accident itself, the plaintiff was the only witness. That the place into which the plaintiff stepped was a dangerous place was not only intrinsically and necessarily true, but that fact was also affirmatively proved by the plaintiff by the testimony of another witness, Thomas Heath. He said: “ Q. You never crossed under the cages while they were running ? A. Oh, yes; very often, I have. Q. Did you ever do it without looking up to see where they were? A. Yes; I have done it. Of course, it was very negligent in me. I have been there in a hurry, attending to my work, when I have run across frequently. Q. You risked your life when you did it, did you not? A. Yes, sir; I did. Of course, I knew better than to do it. Sometimes I would forget. Q. There was nothing to prevent you from seeing the cages, if you would look up? A. Not if I would look up.” Another witness for the plaintiff, Hugh McIntyre, testified: “ Q. When you would go under the cages through the sump you would always take care to see if one of the cages was down, would you not ? A. I generally would look where I was going to when I go into dan — 16 — ger. Q. It would be dangerous for you to have crossed in there, that cage, without looking up to see where the cages were, would it not? A. Yes, sir.” Two of the plaintiff’s witnesses, William Trout and Hugh McIntyre, testified that they were mule drivers, and were engaged that morning at their work, when the accident happened. They were very near the foot of the shaft,—only three or four yards from the bottom; and almost immediately after the plaintiff passed, they heard him moan, and went to his relief, finding him under the cage. They both said the cages were running. Trout testified: “ Q. Did you see on the morning that this injury occurred Mr. McDonald come into the shaft? A. I passed him coming in that morning. How far were you from the bottom of the shaft? A. Some 8 or 4 yards from the bottom. Q. He passed you, and went on toward the shaft, did he? A. Yes, sir. Q. When did you see or hear Mr. McDonald after he passed you? A. Just shortly after he passed me I heard him moan. Q. Did you proceed to where you heard him moan ? A. I went there, and found the old man under the cage. I called to the top of the shaft for to hoist. Q. Where did you find him lying when you went there? A. He was lying right in under the cage.” He further said: “ I was waiting on the cage to be lowered down, so as I could get a load in.” On cross-examination he testified: “ Q. You heard the cage coming down that struck him? A. I heard the cage coming, and heard him moaning then. Q. Are you quite hard of hearing ? A. Yes, sir. Q. The cages had been running before McDonald got there that morning, had they not? A. They were running when he came there..... Q. You had a car loaded ready to send up, and were waiting for a cage to come down? A. Yes, sir..... Q. When you hallooed to hoist the cage, after you heard Mr. McDonald under the cage, they hoisted immediately, did they? A. Yes; they hoisted right up; there was no time until it was right off him.” McIntyre said he was a driver, and was present near the shaft, and saw the plaintiff coming down the heading; and the next he saw him was under the cage, and he went to him, and called to the man at the top to hoist. He further testified: “ Q. What had you done at the bottom of the cage that morning before McDonald passed you. A. I had hitched my mule — 17 — up, and loaded a ear up on tbe cage, and hoisted it up, or told them to hoist it up..... Q. How far were you and Trout standing from the bottom of the shaft? A- About 4 or 5 yards, I should judge it to be. Q. How long had you been talking to Trout before McDonald came in there, before he passed you ? A. I noticed him coming about 50 yards from me, when I crossed over and turned my back to talk to Trout, and I was talking while he was passing. Q. The empty cage that came down while your loaded cage went up, is the one that struck Mr. McDonald? A. Yes, sir. Q. This cage must have been coming very slowly, if from the time you started it up until the descending cage struck Mr. McDonald you were able to walk over 10 yards and converse with Trout? A. Yes, sir. Q. How did the cages generally run, as regarding speed? A. They generally ruu very fast..... Q. At the bottom of the sump you could look up and see the cages running in the shaft, could you not ? A. If you would go close enough, you could look up, and see the boiler at the top of the shaft.” George Figard said that he was the man at the top of the shaft who hoisted the cages; that the work commenced at seven o’clock that morning; that he had hoisted one car of coal; and then was asked: “ Q. What was the first you knew of the man being hurt at the bottom of the shaft? A. About the time we got the load, or it wasn’t hardly up, we received another hoist; that is, a man under the cage. Q. What did you do? A. Hallooed to the engineer to hoist, there was a man under the cage.” The plaintiff’s witness Thomas Heath testified: “Q. Standing at the bottom of that shaft, and if the cages were out of sight, was there any daylight from the top of the shaft? A. If one cage was up, I could see the shadow of daylight ; if it was down, I could see daylight pretty well. I mean by that if the cages were pretty far up I could see the shadow of daylight. Q. What was there to prevent you from seeing the cages if they were up? A. If the cages were up, I couldn’t see daylight, and they would prevent me. Q. But what was there to keep yorr from seeing the cages? A. I don’t know that there was anything to keep me from seeing the cages if I was in the sump. If I was back, I could see a piece up. I couldn’t see very far up.” The foregoing testimony was all delivered by the plaintiff — 18 — and Ms witnesses. It constitutes the basis upon which a recovery is sought. When considered in detail, it proves conclusively that when the plaintiff arrived at the foot of the shaft the work of the day had commenced, and the cages were running in their accustomed manner, up and down the shaft. The plaintiff knew well what that manner was. He knew that they moved rapidly up and down. If he had been in doubt as to their being in operation, he could have ascertained the fact in an instant, by simply inquiring of either of the drivers, who stood close by, or by calling up the shaft to the man at the top. He did neither. He could easily have seen up the shaft, and discovered the situation of the cages, if he had chosen to do so, but he did not. He looked up as far as the top of the man-ufay, but that was only nine or ten feet, and at the time he looked he was in the man-way, and, of course, could only see within its limits. But the man-way was outside the sh^ft, and he could see no part of the interior of the shaft, except the portion of its base which was beside the man-way. He knew the cages were not at the bottom, and therefore that they were up in the shaft. But he testifies himself, and it is the only testimony in the case on that subject, that he did not look up the shaft. The only reason he gives for not doing so is that he had not time, and that is no reason at all. A few seconds would have been sufficient for the purpose; but, whether it took seconds or minutes, it was his plain legal duty to take the time and look up the shaft, before stepping into the sump. That place was one of manifest, conspicuous danger. It had that character as a necessary consequence from the use of the shaft and the cages, which was perfectly well known to the plaintiff. But, in addition to that, one of his witnesses testified positively, directly, and affirmatively to the fact of the danger. Notwithstanding all this the -plaintiff stepped directly into this place, knowing that the cages were above him, without taking the slightest precaution for his safety. He made no inquiry of the drivers. He did not look up the shaft. He knew it was the time of day for the cages to be in motion, and in point of fact they were in motion, and he knew that he was in danger of death if he was struck, yet he walked deliberately into this death-trap with Ms eyes open, and in — 19 — the full possession of his faculties. The question of his culpable and contributory negligence was not an open one. It was a necessary legal conclusion, from his own acts and omissions, proved by himself and his witnesses, not in the least controverted by any one. The very instant he stepped into the sump the consequences of his negligence were brought home to him; he was struck by a descending cage, and severely injured. We say of one who is about to cross a railroad track that it is his legal duty to stop, before he reaches the track, and look both ways, and listen, before stepping on the track, and that if he fails to do all of this he is guilty of contributive negligence by conclusion of law. With much greater force is the reason of that rule applicable to the undisputed facts of this case. The plaintiff was down in a coal mine. He was at the foot of a shaft in which rapidly moving, heavy cages were constantly running during working hours; the light was necessarily dim; the danger was certain and manifest, unless precautions were used; there was nothing to invite carelessness, everything to suggest care; the duty of care was even greater than in the case of crossing a railroad track, for there everything can be easily seen, whereas, here the looking must be more intent, more patient, more cautious, in order to insure safety. The danger is greater because it is in a comparative degree concealed, and should be searched for, while it is just as swift and as sure as in case of a locomotive. But there were other precautions which might easily have been taken, but were not. A simple inquiry from men close by would have revealed the danger, but it was not made. In short, in every aspect of the case, the plaintiff’s negligence is conspicuous, leaving out of consideration the use of the man-way, which was possible, and would have prevented the injury. Further discussion is unnecessary. We think the defendant’s first point should have been affirmed, and the jury directed to find a verdict for the defendant. Judgment reversed.