Reddon v. Union Pacific Railway Co.

Henderson, J.: The plaintiff seeks in this action to recover against the defendant damages on account or a personal injury which he received while in its employ as a laborer in its coal mine. The evidence on the part of the plaintiff tended to — 349 — show, that the defendant was the owner of and was operating a coal mine known as the “Grass Creek Mine;” that the mine consisted of extensive under-ground workings; requiring the services of a large number of miners and workmen; that during the time in controversy one Thomas Thomas was defendant’s foreman, and as such had entire supervision of the mine and all the workings, employed and discharged laborers, and prescribed their duties; that the plaintiff was a practical coal miner, and had been for some years; that on the first day of December, 1884, the plaintiff applied to Thomas for employment, and was employed by him in defendant’s mine; that the openings to and from the mine were through yarious entries, which were designated by numbers, and all entering on the vein of coal on an incline, and were separated from each other by columns or partitions left in the coal vein to support the roof, these partitions being know' to the miners as “ribs;” that through all these entries tracks were laid and horse cars run for a great distance into the mine, for the purpose of bringing out the coal; that at the time the plaintiff was employed, for some time before, and from that time up to the time of the injury, there was going on in said mine what' is known among miners as a “squeeze,” which consists of the settling of the base of the columns or partitions left to support the roof into the softer material of the floor, thereby causing the floors in the spaces to heave, and masses of rock and coal to fall from the top and sides, rendering them more or less dangerous; that this process was more apparent in the fifth entry, making it more dangerous than the other portions of the mine; that when plaintiff commenced work he was, with other workmen, under the immediate supervision of the superintendent, set at work clearing up the deiris which had fallen in the fifth entry on account of the “squeeze,” and leveling the floor, and relaying the car track, other workmen following and casing and timbering to protect from the falling material as fast as the entry was cleared, such work commencing at the mouth of the entry, and extending along it towards the interior of the mine; that after such clearing and timbering had proceeded for some days, — 350 — and bad been extended back some distance from tbe mouth of tbe opening, tbe superintendent, Mr. Tbomas, directed tbe timbering stopped, and tbe workmen engaged in it were directed by bim to assist in tbe clearing, giving as a reason tbat be was in a burry to get tbe cars running through tbe entry, and saying be would timber it after tbe clearing was done, but tbat no further timbering or casing was done; that tbe clearing of the fifth entry was finished about January 15th following plaintiff’s employment, and from tbat time up to tbe time of tbe injury, which occurred May 15th thereafter, tbe plaintiff was engaged as track-layer and repairer, bis duties as such calling bim to tbe various' entries and chambers of tbe mine connected therewith, laying track, removing debris therefrom, putting in switches and connections between tbe various tracks going from one portion of tbe mine to another, as directed by tbe superintendent; tbat during all this time coal and other material was occasionally falling from tbe sides and roof of tbe various entries, but tbat it was falling most in tbe fifth entry beyond tbe timbering, and tbat such entry was dangerous, and was so understood by tbe plaintiff and all tbe workmen; tbat tbe superintendent knew of the unsafe condition of tbe fifth entry, was constantly about the mine, and that bis attention was particularly called to its unsafe condition;, tbat one of tbe workmen called bis attention to it at tbe time he ordered tbe timbering discontinued, and told bim tbat unless it was timbered, some one would be hurt, and be replied tbat there was not time then, but tbat be would timber it after tbe entry was cleared; tbat three or four days before tbe injury, while tbe superintendent was passing along tbe fifth entry, tbe plaintiff called his attention to its unsafe condition, and walked with bim along tbe entry back of tbe timber-ing, and back of the particular place where tbe injury occurred, and notified bim of its condition, and tbe superintendent promised to fix it, tbe plaintiff himself stating tbe conversation as follows: “Ansioer. I took bim and told him this coal was going to fall, if it wasn’t taken down, I was afeard; and I took bim in along tbe road all tbe way in, sounded tbe coal for bim, until I got bim to — 351 — the room where Mr. Locke worked — John Locke — and that was the dangeronsest p]ace there was, between his rib and the nest one; and he says: ‘Bill,’ he says, ‘that won’t fall yet; yon have no idea how this coal will hang;’ and he says Í can’t stop the turn to take it down now, but’ — says he — • ‘I will take it down some other time.’ Them was just the words that was used, as near as I can get at it. Question. What more did he say, if anything, than that he wanted to keep the turn running? A. Why, he didn’t say nothing, only as I told you; he said that he couldn’t stop the turn then to take it down, — that he would take it down some other time — have it taken down; he didn’t take it himself, of course. Q. He said he would take the coal down? A. Tes, sir; he would have it taken down; he didn’t work his own self.” That on the twenty-fifth day of May the plaintiff was called from another part of the mine by the superintendent, and was directed to go into the fifth entry at a place beyond the timbering, but not at the particular place where plaintiff had called the attention of the superintendent to the loose coal, and there load up some coal which cumbered the track. The plaintiff commenced the work, and within a few moments a large mass of coal fell from the sides upon the plaintiff, causing the injury complained of. The direction of the superintendent to do this particular work was testified to by the plaintiff as follows: “Ansioer. Mr. Thomas ordered me and Mr. Harry Thomas over there, to go in and clear up the coal and lower the track. Question. Well, what did you do after having received those orders? A. I went in the entry and stayed there until the turn — we was a little ahead of the trip; that is, the turn coming in. The man that drove the cars stayed there until they came in, and Mr. Thomas came in also, right behind the cars, and I asked him if I should start in here, and he says ‘Yes, clear right up, boys’— Q. (Interrupting.) Which Thomas do you mean? A. Thomas Thomas. He says: ‘Hurry and clear up, for I want to send coal out here this evening-.’ ” The plaintiff’s testimony further tended to show that' the plaintiff knew from reputation and hearsay what effect a “squeeze” had on a mine, but had never had experience — 352 — with one before; that Mr. Thomas, the foreman, had had experience in seven or eight “squeezed” mines, before; that timbering or casing, and removing coal as fast as it was loose from the walls, would have lessened the danger, and been a protection, and that such is the usual precaution in mines undergoing a “squeeze,” but that neither was done, except the timbering above mentioned. The plaintiff was 36 years of age, had always been well and healthy before the accident, and the testimony tended to show that the injury received by the plaintiff was to the nerves of the back, and to the spinal column, and was permanent; and that it was and is very painful, totally disabling him from any labor; and that he requires the constant care and attendance of nurses; that he cannot dress or undress without assistance, and that his lower limbs are so far paralyzed that he has but little use of them. At the close of the testimony for the plaintiff the defendant moved the court for a nonsuit, on the ground that the plaintiff had not made a case entitling him to recover, and because the plaintiff’s testimony showed that he was guilty of contributory negligence, which was overruled by the court. The defendant’s testimony tended to show that the plaintiff, by the exercise of due diligence, could have avoided the accident by discovering that the coal which fell on him was loose; that he knew the dangerous condition of the mine, and of the fifth entry, where he was hurt, and tended to contradict the plaintiff’s testimony. At the close of the testimony the defendant presented a number of requests to charge. The trial judge did not follow the requests to charge, but formulated his charge to the jury, varying and modifying some of the requests. The jury returned a verdict for the plaintiff for $20,000, and judgment was entered thereon. The defendant thereupon moved for a new trial on statement, on the ground, among other things, that the damages were excessive. The court overruled the motion for a new trial, upon condition that the plaintiff should remit $5,000 from the verdict and judgment, which the plaintiff did, and the motion for a new trial was denied; and the defendant appeals to this court from the judgment and order overruling motion for a new trial. — 353 — The first question arising upon this record is the ruling of the court in overruling the appellant’s motion for non-suit. The first ground stated for a nonsuit raises the ques_ tion as to whether under this state of the ease the defendant is liable to the plaintiff for the acts of Thomas, the superintendent; and, if so, whether negligence or neglect of duty was shown which was the proximate and efficient cause of the inj ury. In the reported cases of the various states there has been much discussion and diversity of opinion as to the responsibility of masters for the acts and omissions of co-employes, and as to how far and under what circumstances agents and employees engaged in various departments of duty and service are fellow-workmen or co-employees with other servants, so as to exempt the master from liability for their acts; but we think that the great weight of authority in the state courts establishes the proposition that the superintendant of a mine who has general and entire charge of the work, employs and discharges workmen, and directs their duties and employments, is not a co-employee with common laborers in the mine, whose duty it is to obey the order of such superintendent, within the rule exempting the master from responsibility for the acts and omissions of such superintendent, and that as to such common workmen the master is responsible for neglect of duty by such superintendent. Ryan v. Bagaley, 50 Mich., 179; Birckner v. Railroad Co., 49 N. Y, 672; Malone v. Hathaway, 64 N. Y., 5; Railroad Co. v. Stevens, 20 Ohio, 415; Railroad Co. v. Keary, 3 Ohio St., 201; Railroad Co. v. Collins, 2 Duv., 114; Ford v. Railroad Co., 110 Mass., 241; 1 Redf. R. R., 554; Whart. Neg., sec. 232; Bowers v. Railroad Co., 4 Utah, 215. This rule is recognized and adopted by the federal courts; Railway Co. v. Ross, 112 U. S., 377; Hough v. Railway Co., 100 U. S., 213; Railroad Co.v. Herbert, 116 U. S., 642; Railroad Co. v. Fort, 17 Wall, 553. Did, then, the evidence tend to show negligence on the part of the superintendent, or was the accident the natural result of the dangerous and hazardous business in which the plaintiff had voluntarily engaged to serve the defendant? One who engages in the employment of an — 354 — other for tbe performance of certain duties for compensation, tabes upon himself the natural and ordinary risks and perils incident to the performance of the service, and the pay is presumed to be regulated to cover compensation for such risk. This is a part of the contract on the part of the employee, and this rule applies as well where the service in which he engages is naturally hazardous or extra-hazardous. This is so well established by adjudications that references are needless. On the other hand, it is the duty of the master not to expose the servant in performing his duties to hazards or perils which may be guarded against by proper diligence. It is his duty to observe all the care which prudence and the exigencies of the situation require, and to furnish reasonably safe and proper structures and instrumentalities to avoid danger. He is not required to furnish the safest known appliances and means of avoiding danger, but such as are usual and reasonable under the particular circumstances and exigencies, and this is a part of the contract of hire on the part of the master: Hough v. Railway Co., 100 U. S., 213; Railway Co. v. Fort, 17 Wall., 553; Railway Co. v. McDaniels, 107 U. S., 454. The servant’s exposure to hazards resulting from the violation of this duty on the part of the master is not within his contract of service, and the master is liable for injuries resulting therefrom: Hough v. Railway Co., supra. We are of the opinion that the testimony clearly tended to show that the accident to plaintiff was the result of a violation of this duty on the part of the defendant, and should have been submitted to the jury. The superintendent knew of the dangerous’character of the mine resulting from the process then going on in it. His attention had been expressly called to the danger in the fifth entry; he had recognized the danger and the necessity and propriety of timbering or casing, and of sounding along the walls, and removing the loose coal and debris, by promising that it should be done; and it is reasonable to suppose, from the testimony, that the accident would have been'avoided if either had been done; but, representing the company, simply to facilitate its operations, and suit its convenience, — 355 — this precaution was neglected and tbe plaintiff subjected to tbe risk which resulted in his injury. The ground most relied on by appellant for a non-suit is “that the plaintiff was guilty of contributory negligence.” At the close of the plaintiff’s testimony the court should not grant a non-suit, on the ground of contributory negligence, unless it affirmatively appears by his testimony. Contributory negligence is an affirmative defense, and- the burden of showing it was upon the defendant: Hough v. Railway Co., supra; Railroad Co. v. Gladmon, 15 Wall., 401; Whart. Neg.,sec. 423; Bowers v. Railroad Co., 4 Utah 215; Railroad Co. v. Horst, 93 U. S., 291. A non-suit should not be granted, and the case taken from the jury, unless the court will feel constrained to grant a new trial upon the same evidence. Bowers v. Railroad Co., supra; Railroad Co. v. Stout, 17 Wall., 657; Randall v. Railroad Co., 109 U. S., 478. It is insisted by appellant that the plaintiff’s testimony shows that he knew of the dangerous character of the mine, and of the precautions taken by defendant to avoid accident, and that by continuing in its employ after such knowledge he was guilty of contributory negligence. If a servant, before he enters service, or afterwards, discovers that the instrumentalities furnished for his protection are defective, and understands, or by the exercise of ordinary observation' ought to understand, the risks to which he is thereby exposed, and if notwithstanding such knowledge, he, without objection, and without any promise on the part of the employer that such defects will be remedied, continues in such service, he cannot recover for injuries resulting therefrom, but will be deemed to have waived all negligence and neglect of duty on the part of the master, and would be guilty of contributing to such negligence: Hough v. Railway Co., supra: Greene v. Railway Co., 17 N. W. Rep., 378. But where there is any evidence tending to rebut the presumption of waiver on the part of the servant, it presents a case for the jury: Hough v. Railway Co., supra; Greene v. Railway Co., supra; Lansing v. Railroad Co., 49 N. Y., 521. We think that the promise of the superintendent in this case, — 356 — to remedy the defect, was very clearly evidence tending to rebut the presumption that the plaintiff, by continuing in the employment, assumed the increased risk by the defendant’s neglect. In Hough v. Railway Co., before referred to, Mr." Justice Harlan, speaking for the court, quotes with approval from Shear. & R. Neg., sec. 96, as follows: “There can be no doubt that where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise, as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept.” And he cites in support of the doctrine thus stated: Conroy v. Ironworks, 62 Mo., 35; Patterson v. Railroad Co., 76 Pa. St., 389; Le Clair v. Railroad Co,. 20 Minn. 9 (Gil. 1.) And, again, quoting from Cooley on Torts, he says: “If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurance removes all ground for the argument that the servant by continuing the employment engages to assume the risks.” See, also, Greene v. Railway Co., supra. In this case the plaintiff called the attention of the superintendent to the defect, and made known his fears, and the superintendent in reply asserted his superior knowledge to that of the plaintiff, and assured him there was no danger, but promised to remedy the defect. In prosecuting such a work as the defendant was here conducting, persons are selected and employed with reference to the duties they are intrusted with. A superintendent is employed for his supposed superiority in ability, capacity and experience to the common laborers who are under his supervision; he is supposed to inspire their trust and confidence; they are accustomed to obey his orders, and to trust to his superior-judgment. The representations and promises of this — 357 — superintendent were undoubtedly made to tbe plaintiff to induce bim to continue bis service, and dispel bis fears. Is it unreasonable to suppose tbat it did so? We think not. We are of tbe opinion tbat it was for tbe jury to say wbetber tbe defective appliances and precautions were sucb tbat it was negligent for tbe plaintiff to continue tbe service; and if, under all tbe circumstances, considering tbe promise and conduct of tbe superintendent, tbe plaintiff was not wanting in due care and caution in coiitinuing, then tbe defendant was not excused for tbe ommission to perform its duty. Tbe appellant also complains of tbe refusal to give various of its requests to charge, and to tbe modifications of some. Tbe charge given by tbe court was in accordance with tbe principles before stated. This court has held tbat it is not error to refuse to give instructions in themselves proper, in tbe language they are requested, if the court in its own language gives their substance. Tbe requests, so far as they were proper, were substantially given; indeed, tbe substance of most of tbe defendant’s requests was given. Tbe change made by tbe court in the giving of defendant’s third request, in view of other portions of tbe charge given, was immaterial. Tbe defendant requested the court to charge as follows: “If you find tbat it was tbe tbe course pursued in this instance by. the defendant to carry on tbe business of mining, while tbe walls and surroundings in tbe mine were unsafe and dangerous, and this fact was known to tbe plaintiff, and tbat he also knew tbe character of tbe dangers there existing, and yet entered upon and continued in said service, be assumed tbe risk of sucb dangers, and is not entitled to recover in this action.” This tbe court did not give, but did instruct tbe jury tbat under substantially sucb circumstances tbe defendant would not be liable, unless there was an agreement to remedy tbe defect, and provide necessary and proper protection, and tbat tbe plaintiff, relying upon sucb promises, continued bis work; and this was all tbe defendant could properly ask. Tbe appellant asks tbat the judgment be reversed because tbe damages were excessive, appearing to have been — 358 — given under tbe influence of passion or prejudice. Tbe argument is that tbe trial court, having determined tbat tbe damages are excessive, it taints tbe whole verdict, and tbat none pf it should stand. Tbe practice which was pursued in this case is thoroughly established by precedent. 1 Suth. Dam. 813-815, and cases there cited. It is a supervision which courts exercise over verdicts for the protection of defendants in what are deemed to be proper cases, and if the rule iS ever to be disturbed, it should be on the application of parties injured, and not those who are benefited by it. We are not pre3 pared to say that the damages, after the reduction, are excessive, in view of the severe character of the injuries. The discretion of the trial judge in this respect, who saw the plaintiff personally and heard the testimony of all the witnesses, ought not to be disturbed, unless it presents a plain case of the abuse of its exercise. The judgment and order appealed from should be affirmed. ZaNE, C. J., and BoremaN, J., concurred.