Whatley v. Zenida Coal Co.

McCLELLAN, C. J. — The first count of the complaint was bad in that it did not specify the defect in defendant’s ways, Avorks, machinery or plant of AAdiieli it complains. It cannot as matter of law be said to be the duty of persons operating coal mines to cut a mamvay, different and separate from the slojie through Aidiicli coal is brought to the surface, for the ingress and egress of their employes. Count 4, therefore, presented no cause of action. The 5th count ascribed intestate’s death to the negligence of a person in charge of a stationary engine. This person Avas a felloAV servant of the deceased; and not being in charge, etc., of an engine on the track of a railway, the defendant is not liable for his negligence in operating the engine under his control. The demurrer to this count Avas properly sustained. There Avas no evidence offered on the trial in support of the pleas AAdiieli Avere sustained against plaintiff’s de-, murrer, and hence it is unnecessary to consider the sufficiency of those pleas or of replications to them. The eAddence tended to support the second and third counts, Avliieli averred, respectiAudy, a defectiAre coupling pin and a defective trannvay- There Avas also evidence from which the jury might have inferred that the death of plaintiff’s intestate Avas caused by the defective pin as charged in the second count, or that it Avas caused by the defective track as charged in the third count. Either conclusion thus open to the jury Avould have entitled plaintiff to recoArer, unless (1) he was [128] guilty of contributory negligence in attempting to go up the slope while tram-cars were being drawn up ahead of him, or (2) he knew of the defective conditions complained of and by continuing in the service after they should have been remedied assumed the risks of injury from them, or (3) he was not within the line of his employment at the time and place when and where he was killed. In our opinion negligence cannot be .affirmed as a matter of law upon the mere fact that at the time he was killed the intestate was going up the slope while tram-cars were being drawn up some distance ahead of him. All ingress and egress into and out of the mine was along this slope, and it was necessary in pursuing it to walk in many places between the rails of a narrow track. As we understand the evidence, when the cars being handled at the moment whether passing up or down were below a given point there was a steel wore cable running at the rate of from fifteen to twenty miles an hour along the center of this narrow track. This, of course, tended to make the track an inconvenient and even to some extent a dangerous pathway while the cars were below the person desiring to go into or come out of the mine. On the other hand, to enter upon the track and attempt to pass along it below cars that were being drawn up or let down into the mine subjects the person making the attempt to the danger of the cars breaking loose from the cable and precipitating themselves down the steep grade of the slope. But this, of course, would not ordinarily happen, and given proper appliances and due care in the use of them it might well he argued that it would never happen. Now, when to these are added the further considerations that at nearly every point along the tramway a person could get off the track on the approach of descending cars, and at several places there were cells or holes in the walls of the slope which would afford safety even from derailed cars, and that the occasions of deceased’s employment required him to go up and down the slope, we are not prepared to say as a matter of law that he was guilty of negligence in trying to ascend the slope as the evidence shows he did, especially as it appears that he was not on the track [129] when stricken, and was not stricken directly by the descending cars, but was killed by a post which the derailed cars struck and knocked against him. Whether he was guilty of negligence under all the circumstances was a question about which prudent and reasonable men might differ, and it should have been left to the jury. Ho as to the inquiry whether he knew of the defects sufficiently long to render his continuance in the service the assumption of the risks incident to them. There was no evidence that he knew or ever had any opportunity of knowing the defect in the coupling pin, if such defect existed. As to the alleged defects in the tramway, there is no direct evidence that he had any knowledge of them. The most that can be said is, that while it urns no part of Ids duty or business to be on the lookout for such defects yet he had opportunities in the course of his employment to observe these defects, the opportunities and the defects being of such character as to afford ground for an inference that he had observed and did know of the defects. But this inference was for the jury. They were not obliged to indulge it. And whether the facts warranted its deduction should have been submitted to them. It is always for the jury to draw or not to draw inferences from facts proven, unless it is a matter of legal-presumption, which this clearly is not. Nor do we think it was for the court beloAV to declare That the deceased Avas not acting within the line of his employment Avhen he Avas killed. He had to go to and from his Avork along this slope, and defendant OAved him immunity from hurt through such negligence as is counted on Avhile seeking ingress to and egress from his Avork in its mine; and it does not appear but that it Avas time for him to quit Avork and leave the mine. Moreover, there Avas CA-idenoe in the case that at the very mo-, ment he Avas killed he was wanted at the mouth of the mine by the defendant’s foreman, presumably on defendant’s business, and there is at least room for the jury to find that he knew he Avas wanted, though whether lie' knew it or not the fact that a note had been sent doAvn the mine from the foreman requiring his presence at the surface Avas competent as shedding light upon the range of his duties. And beyond all this, it is clearly made to [130] appear that it ivas his duty to look after the water pipes which extended along the slope through its entire length, to prevent or stop leaks, etc., and the discharge of this duty would necessarily require him to go up and down the slope. At least, all this was sufficient to put it beyond the power of anybody but a jury to say that he was acting beyond the range and scope of his employment at the time he was killed. The circuit court, therefore, erred in giving the affirmative charge for the defendant; and for this error the judgment must he reversed. The cause is remanded. Reversed and remanded.