Republic Iron & Steel Co. v. Thomasino

176 F. 49, 29 L.R.A.N.S. 606, 1910 U.S. App. LEXIS 4221

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 8, 1910
• Docket: No. 1,984
• Status: Published

Opinions

PARDEE, Circuit Judge

(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 as 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. ; 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.