Troughear v. Lower Vein Coal Co.

Seevers, J. There was evidence tending to show that Sheppard was defendant’s superintendent, McKinna was the pit boss, and Brady and Parsons were road men. McKinna had full charge of the mine, but had no authority to hire or discharge the employes, but Sheppard had such power. It was McKinna’s duty to see that the mine was in proper condition. When the roof of the mine was discovered to be unsafe, it was the duty of the road man to put it in proper and safe condition. The evidence tends to show that the deceased was injured by a rock falling from the roof on him while he was working in the mine. The evidence further tends to show that McKinna had knowledge that the roof was unsafe, and that he directed or the road men undertook to make it safe and secure by propping. Brady made an attempt to do this the evening before the accident. Parsons put props under the rock, and informed the deceased that it was now in safe and good -condition. The decedent went to work, and the accident immediately thereafter occurred. The accident was undoubtedly caused by the failure of the road men to sufficiently prop or remove the rock from the roof. It is clear that the road men and deceased were co-employes, and the court so instructed the jury. In Peterson v. The Whitebreast Coal and Mining Co., 50 Iowa, 673, it was held that the principal was not liable for injuries reeieved by an employe through the negligence of a co-employe. The circuit court seems to have adopted this view, and instructed the jury as follows: “7th. The defendant is liable for carelessness and negligence in the selection of its employes, and where the employment involves great danger to life, the degree of care and prudence in selecting and employing such employes must be [578] sucb as would be exercised by a reasonably prudent person, having due regard for human life, and for the services to bo performed; but it cannot be held for injuries arising from the carelessness and negligence of co-employes. “Co-employes are those engaged in the same general business, working to the accomplishment of the same general purpose. The person who mines the coal, and he who labors upon the road-way in miners’ rooms, are co-employes and fellow workmen. “8th.' If, therefore, the defendant, through its superintendent, Sheppard, carelessly or negligently selected and employed indiscreet or negligent servants to perform services in its mine, or, having employed such, retained him or them in its service, when he knew, or by the exercise of ordinary care and prudence might have known, of his or their unfitness for the employment or work to be performed, it is guilty of negligence.” It will be seen that the court submitted to the jury the question whether Sheppard had been negligent in employing careless and improper men in the mine, through whose negligence or inefficiency the°deceased was injured. Indeed, as we understand, this was the only question as to the negligence of the defendant which was submitted to the jury. Onr opinion is confirmed in this respect by counsel for the appel-lee, who in their argument say: “The only theory for the recovery of the plaintiff which the charge of the court contains, as we view it, is that the defendant, if liable at all, was liable on account of its careless and negligent selection of the road-man, Parsons.” The instructions in this respect are clearly erroneous, because there is no such issue. It is not alleged in the petition that Sheppard was negligent in employing Parsons. The plaintiff does not seek to recover on this ground, but because the mine was not kept in a safe condition, and because the roof was not sufficiently propped or otherwise protected. There was error in giving the eighth instruction above set [579] out, for the further reason that there was no evidence introduced upon the trial justifying it. There is an entire absence of evidence that Sheppard carelessly or negligently employed in discreet or negligent servants, or that the persons employed by him were unlit for the work to be performed by them We have frequently held that it is error to submit to the jury and call upon them to make a finding upon facts of which there is no evidence. Reversed.