Lilly v. Elm Point Mining Co.

Robinson, J. This is a personal-injury suit in which the plaintiff recovered a verdict for nearly $4,000. In November, 1917, defendant owned and operated a coal mine in McLean county. It is a side-hill mine, from which the coal is taken by small cars running on a horizontal track of wooden rails. The rails were about 2 feet apart and were on the level ground and on a dump of mine slack, and then, for about 20 feet, on a trestlework. The rails laid on the trestle were about 6 feet above the ground. There was no flooring between the rails or on the outer edge of the rails. The mine was operated by filling small cars with coal, then pushing or pulling them to the outer end of the rails, and dumping the coal into a chute or wagon. The plaintiff was in the employ of defendant, and, on the day of the accident, he and the superintendent pushed out a car of coal to the end of the track. Then, as the guage of the car was a little too narrow, the right front wheel of the car fell down between the tracks. The superintendent ordered the plaintiff to go forward and replace the wheel. The plaintiff went forward, stood on the narrow track or rail, and attempted to lift the same, but could not do it because the flange of the wheel was caught on the track. Then he stepped across onto the other track or rail and pulled on the left front wheel, and then the right hind wheel fell between the tracks. As the plaintiff stood on a narrow rail and had to balance himself by holding onto the car, and as there was no footing between the rails, the lurch of the car threw him on his back across the track on the right side of the ear. He fell down the chute. His lower rib was fractured, and he was badly injured and disabled. He suffered much pain, some expense in doctoring, and the impairment of his working capacity, and so the jury assessed his damages at $4,000; and, though the damage appears rather excessive, that is not sufficient cause for disturbing the verdict. It is quite probable the plaintiff would have settled for half the sum if he could have obtained it without incurring the future expense of an action and an appeal to this court. Where a party has to recover his damages 'at the end of a lawsuit, the expense is always a matter of some consideration. The law is simple: One who, for a good consideration, promises to serve another must perform the service, and must use ordinary care and diligence therein. Comp. Laws § 6112. [466] An employee must substantially comply with tbe directions of his employer concerning tbe services in which be is engaged. Comp. Laws § 6115. An employer is not bound to indemnify bis employee for losses suffered in consequence of tbe ordinary risks of tbe business. Comp. Laws § 6107. An employer must, in all cases, indemnify bis employee for losses caused by tbe former’s want of ordinary care. Comp. Laws, § 6108. Much is said concerning tbe proximate cause of tbe accident, and it is true that tbe first wheel falling from tbe track did no injury to any person. It was merely tbe remote cause of tbe accident. Tbe proximate cause was tbe direct result of an attempt to replace tbe wheel upon tbe track, and in making tbe attempt tbe plaintiff acted under tbe direct orders of tbe superintendent and manager of tbe mine. Tbe plaintiff stood on a narrow track, lifting a corner of tbe car and bolding onto it for support, when tbe car gave a lurch and tbe plaintiff was thrown over because there was no footing between tbe tracks. If there bad been some flooring between tbe tracks, as there should have been, then plaintiff’s left foot would have automatically moved to tbe left and onto the flooring, and that would have steadied him and prevented bis falling. In trying to adjust tbe car and replace it on tbe track, tbe plaintiff bad a right to obey and trust tbe orders of tbe superintendent who stood over him. Tbe superintendent bad no right to order, or even permit, him to do what was dangerous, or to work in an unsafe place. For tbe fault of its superintendent and manager, tbe defendant must answer in damages according to tbe verdict of tbe jury. Affirmed. Christianson, Ob. J., and Birdzell, J., concur. Grace and Bronson, JJ., concur in tbe result.