Republic Iron & Steel Co. v. Thomasino

(after stating the facts as above). It is undisputed that it was the duty of the defendant to have furnished the plaintiff’s intestate with sufficient props to support the roof of the room where he was mining, and that it was the duty of the plaintiff’s intestate to properly set the props. See Sloss Sheffield Steel & Iron Co. v. Green (Ala.) 49 South. 302.

The evidence is conflicting as to whether the defendant did its duty in furnishing the props — it is undisputed that the plaintiff’s intestate did not set any props in the last 4 to 5 days of his work nor in the last 20 to 30 feet of his room.

The plaintiff’s evidence shows that plaintiff’s intestate worked in his room three or four (Joe Immodino), two or three (Joe Thomasino) days without putting up props, and then called on the mine foreman for props, and the bank boss said: “Go to work. I will send you timbers to-day. That the top was all right.” Joe Immodino. “Go to work. To-morrow I will send you the props.” Eavito.' “The top is all right. You go ahead and go to work. If you don’t go to work you can quit.” Or “Never mind, you go ahead. The top is all right, and after a while *54as soon as I can I will send you props.” Joe Thomasino. .And after the application for- props the plaintiff’s intestate worked on two or three days, extending- his room and the unsupported roof thereof, when, the roof fell and killed him.

The undisputed evidence shows that the plaintiff’s intestate was an experienced miner, that he knew of the necéssity of propping his roof as he advanced fúrthér in his work and of the danger of its falling if not properly supported, and that when he went to work the morning of his death he, with his assistant, exámined the roof and it seemed all right. From this it is clear that, in continuing his mining and extending his room without propping, the plaintiff’s intestate well knew and appreciated the danger, and he assumed the risk, and plaintiff cannot recover, although the defendant neglected to furnish the necessaryprops (see. Sloss Iron & Steel Co. v. Knowles, 129 Ala. 414, 30 South. 584), unless the plaintiff’s intestate had a right to rely upon the mine foreman’s promise to furnish props and his assurance as to safety. This is not a case of a master’s furnishing a defective appliance or place which he promises to have repaired or made safe, but is rather a case where assurance of safety was given to the servant who was making his own place to work, which he knew as well as any one could know would be and was dangerous without using the appliances the master promised to furnish (and he knew that the master had not furnished them), and he'well knew that in continuing to work therein he was in danger and was increasing the danger with every stroke of his pick, for he was an experienced miner and well knew of the necessity of propping his roof as he advanced. Surely, under these circumstances, the plaintiff’s .intestate had no right to rely oh the promise to furnish props whether the furnishing was to be “to-day,” “to-morrow,” or “after a while as soon as I can.”

And we think it equally clear, under the plaintiff’s evidence most favorably considered, .that the plaintiff’s intestate had no right to rely upon the foreman’s ássurances that: “The top is all right.” '“Never mind, you go ahead. The top is all right” — because he was not only an experienced miner, but, as to the actual situation at the time the alleged assurance was given, he knew more about the situation than the foreman did, for hé knew, and there is no suggestion in the evidence that the foreman knew, that he had already mined two or three days extending his roof (10 to 12 feet according to the average) without setting props, thus increasing the ordinary danger.

We conclude, on .principles well supported in reason and well recognized in adjudged cases, that under the evidence, and as a matter of law, the plaintiff’s intestate, in continuing to work in the mine in the absence of sufficient'propping to support the roof in his room, assumed the risk of injury from-the falling roof, and defendant was entitled to the peremptory charge in its favor. See Sloss Iron & Steel Co. v. Knowles, supra; Alteirac & West Pratt Coal Co. (Ala.) 49 South. 867; Coosa Manufacturing Co. v. Williams, 133 Ala. 606, 32 South. 232; Musser-Sauntry Co. v. Brown, 126 Fed. 141, 61 C. C. A. 207; Glenmont Lumber Co. v. Roy, 126 Fed. 524, 61 C. C. A. 506; Kansas City S. Railway Co. v. Billingslea, 116 Fed. 335, 54 C. C. A. 109; Bunt v. Sierra Butte Gold Mining Co., 138 U. S. 484, 11 Sup. Ct. 464, 34 L. *55Ed. 1031; Eureka Co. v. Bass, Adm’r, 81 Ala. 214, 8 South. 216, 60 Am. Rep. 152; Bridges, Adm’r, v. Tennessee, C. & I. R. R. Co., 109 Ala. 293, 19 South. 495.

The judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to award a new trial.

(dissenting). 'The question of the deceased’s contributory negligence was one for the jury, and, in my opinion. it was correctly submitted to the jury by the trial judge.

The court gave the last charge copied in the statement of the case in the opinion of the majority, but added the following explanation:

“Now I give you that in connection with the general charge, provided always if he (the deceased) stayed there in pursuance of a request, under the advice that it was safe, and didn’t know, and that a person of ordinary prudence would not know, it was dangerous, then, in that event, if lie knew it was dangerous he could not recover ; otherwise he might.”

In explanation of another charge requested by the defendant company, the trial court further said:

“If you should find that Mason was negligent in not furnishing those things, and told him the roof was safe, and that he stayed there, relying on it, and the danger of mining under those circumstances was not obvious and apparent to a reasonable man, then that might excuse him from contributory negligence; but otherwise It would not, because it is the duty of a man who has sufficient experience to know that mining in the way he was was dangerous without, the props, * * * if it was an apparent and known danger he would not he justified in risking his safety on it. * * * But, as I explained to you several times, that depends upon whether the danger was obvious and apparent.”

These instructions, in my opinion, correctly state the rule applicable to the case.

The reasons given by the trial court for overruling the motion for a new trial álso shed light on the case as it was presented to the court and jury, and show that the question involved, to sorne extent, the credibility of the evidence, and was, therefore, one for the jury. Here is the order:

“The court has carefully considered the briefs of counsel, and the evidence in connection with the general charge, and the refused charges, and is of the opinion that the case was fairly submitted to the jury, and- that a new trial ought not to be granted. It is true Salvador Lavito testified that Mr. Mason said ‘Go to work, and to-morrow I will send you the timber,’ etc., and that Immodino testified that Mason said, ‘Go on to work, and I will send you the timber to-day.’ .Toe Thomasino. when asked what the deceased said to Mr. Mason about furnishing him the props, testified, in substance, ‘after awhile, or as soon as 1 can, I will send you the props.’ and then the deceased went bade to work, and be asked the driver for the props, and lie did not have them. The testimony of Mr. Mason did not impress the jury, and the jury might well have found, under the circumstances, that the deceased had a right to rely upon the promise to furnish the props as soon as the defendant could, and to wait a reasonable time therefor, which reasonable time the jury, under all the circumstances, found included the period in which the accident occurred. The several versions of the promises were before the jury, and it was for the jury to say which version was true. It is therefore considered that the motion for a new trial he denied and overruled, and that the defendant llave 90 days from this date in which to prepare and present a bill of exceptions. This 20th day of May, 1909. Thos. G. Jones, IT. S. Judge.”

*56., The view of the trial .judge that the deceased had the right to rely on the promise of the master to furnish the props, and to continue to work, waiting a reasonable time therefor, is fully sustained by the authorities, as is, also', his conclusion that the question of reasonable time was one for the jury. 1 Labatt on Master & Servant, § 429, p. 1”213, and cases cited in note 5; Dresser on Employers’ Liability, § 115, p. 591, and cases cited; C., N. O. & T. P. Ry. Co. v. Robertson, 139 Fed. 519, 71 C. C. A. 335 (opinion by Lurton, Circuit Judge).

I cannot concur in' the conclusion that the deceased servant, as matter of law, assumed the risk of injury from the falling roof of the mine; the master having negligently failed to furnish the props. A risk which the master negligently created by omitting some precaution which, in the exercise of ordinary care, ought' to have been taken, cannot be regarded as one of the ordinary risks of the employment which the servant, as matter of law, is presumed to have assumed. This principle “has been formulated and applied so frequently as to have become axiomatic.” 1 Labatt on Master & Servant, § 270; Ford v. Fitchburg R. R. Co., 110 Mass. 240, 14 Am. Rep. 598. This view has the approval of the Supreme Court. In Hough v. Railway Company, 100 U. S. 213, 25 L. Ed. 612, that court held that it is implied in the contract of service “that the master shall supply the physical means and agencies for the conduct of his business. It is also implied, and public policy requires, that in selecting such means he shall not be wanting in proper care. His negligence in that regard is not a hazard usually or necessarily attendant upon the business. Nor is it one which the servant, in legal contemplation, is presumed to risk. * * * ”

The conclusion of the court in the opinion just read can only be sustained on the theory that the danger was so obvious that a person of ordinary prudence would not, have .continued the work. I find nothing in the record showing that it was apparent and obvious that the roof of the mine was about to fall. It is to be presumed that the jury, as instructed by the trial judge, would have found for the defendant if such had been the fact. On the contrary, there is much to show that the danger did not appear to be imminent. It is not reasonable that Mason would have pronounced it safe and instructed the deceased to continue work if the danger had been obvious; and, besides, the instinct of self-preservation is to be considered and weighed against the supposition that the deceased incurred obvious and plain peril. The question was clearly one for the jury. Kreigh v. Westinghouse & Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984.

I dissent from the opinion and the judgment of-reversal.