Fowler v. Pleasant Valley Coal Co.

After stating the facts, Miner, J., delivered the opinion of the court: With reference to master and servant the rule is that, if a master gives the servant to understand that he does not consider the risk which the servant is to undertake [353] one which a prudent person should refuse to undertake, the servant has a right to rely upon the master’s judgment, unless his own judgment is so clearly opposed thereto that in fact he does not rely upon the master’s judgment. 1 Shear. & ft. Neg. § 186. The accident complained of occurred at a time when the mine was not being worked and when the plaintiff was not in the master’s immediate employment. Plaintiff was paid by the ton. The coal in question was about 12 feet from the face of the drift where the plaintiff was working. The plaintiff testified that he had been an experienced coal miner for 24 years, and that this slip was liable to come out at any time without warning, and he told the foreman so, and that the foreman replied that it was safe; that, after the foreman told him it was safe, he thought it was. But he afterwards states that he thought the coal there would fall, and give no warning, and, if he had to pass there, it was not safe for him or any other man; that he believed so, and continued to believe so, and thought it should be taken down. Knowing this dangerous condition, he voluntarily sat down under the projecting coal, and while he sat there under it, visiting with friends, and smoking, his attention was called to the coal, and he was asked why he did not take it down. He replied that the boss had forbidden it. While he was still talking and sitting under the coal, with no disturbing circumstances or emergencies confronting him, with no duty calling him to a place he knew was dangerous, the coal fell upon him. On this day and at this time he was not in the master’s service. He was not then acting under his command, or engaged in discharging his duty to his employer. He voluntarily assumed, for his own convenience and comfort, the responsibility of selecting that place in which to sit and smoke. He volun [354] tarily assumed the risk of the injury that he invited by his own negligent acts and want of reasonable care. If he was in his master’s service, and knew the place was dangerous, and could by the use of reasonable care discharge his duty to the master by avoiding the dangerous place, and failed to do so, then he assumed the risk he voluntarily incurred. At the time he took a seat under the coal he was not called upon to act in a sudden emergency. No disturbing circumstances were controlling his actions. He voluntarily sat down under the coal, and thereby exposed himself to the known danger, while enjoying his leisure. It cannot be said he was not thinking of the coal at the time he sat there, for the testimony he offers shows that he must have thought of the coal, because he discussed the propriety of taking it down while he sat under it. The plaintiff’s own witness testified to this fact upon the plaintiff’s direct case,' — that such conversation occurred two minutes before the coal fell. The plaintiff does not dispute this, but says he was hot thinking of the coal just before it fell. He was discussing the propriety of taking it down two minutes before it fell, but was not thinking of it just before it fell. A plaintiff should not be allowed tp predicate his case for damages upon such a subterfuge. There was no occasion at all for him to sit or be at the point where the accident occurred. The plaintiff’s knowledge of the dangerous place at the time of the accident is shown by his own testimony. If there be a contradiction, it arises from the plaintiff’s own testimony. In such a case, where a nonsuit is asked, the trial court may consider such testimony true as bears the most strongly against the interest of the plaintiff. The testimony clearly bears the construction that the plaintiff did not rely upon the foreman’s judgment, but all the time continued to believe and rely upon his own judgment [355] that the coal was dangerous, and ought to be taken down. If the contrary theory is correct, then the questions that could hare been submitted to the jury were: (1) Did the plaintiff! tell the truth when he said he relied upon the foreman’s statements that the coal was not dangerous? or (2) Did he tell the truth when he said that from his experience of 24 years as a coal miner he believed, and continued to believe, the coal was dangerous, and liable to fall at any time, without warning? (3) Did he tell the truth when he said he was not thinking of the coal just before it fell, or was the uncontradicted testimony of the witness Edwards true when he said the plaintiff was talking of taking down the coal two nimutes before it fell? This testimony seems to negative the right of the plaintiff to recover. Plaintiff’s testimony shows that he negligently and voluntarily placed himself in a position he knew to be dangerous, at a time when he was discharging no duty to his employer. Under such circumstances his contributory negligence was a question of law for the court, and the nonsuit asked for should have been granted. McGlynn v. Brodie, 31 Cal. 377; Butte v. Coal Co., 14 Utah 282; Cook v. Mining Co., 12 Utah 57; Bunnell v. Railway Co., 13 Utah 314; Bunt v. Mining Co., 11 Sawy. 178; Bunt v. Mining Co., 138 U. S. 483; Kilroy v. Foss, 161 Mass. 138; Coal Co. v. Muir, 20 Colo. 320; Naylor v. Railway Co., 53 Wis. 661. The judgment is reversed, and the cause is remanded to the trial court, with directions to set aside the'judgment, and to grant the defendant a judgment of nonsuit against the plaintiff. Baetch, J., and McCarty,. District Judge, concur.