MINING REPORTS.

VOL. XI.

PETERSON V. WHITEBREAST COAL AND MINING CO.

(50 Iowa, 673. Supreme Court, 1879.)

Co-employe-Superior and inferior servant. A corporation is not liable for injuries suffered by an employe through the negligence of a co-employe of a different grade, not vested with authority in the general management of the corporate business, notwithstanding such co-employe is higher in authority than the one receiving the injury.

Action for damages by employe against employer for negli gence; the opinion states the facts; the defendant had judg ment below upon demurrer to the petition. Plaintiff appeals. J. N. McCLANAHAN, for appellant.

STUART BROS. & BARTHOLOMEW, for appellee.

SEEVERS, J.

It is conceded there is no statute making the defendant liable, but the claim is that a recovery can be had at common law. Nearly twenty years ago it was held in Sullivan v. M. & M. R. R. Co., 11 Iowa, 421, that the principal was not liable for damages sustained by an employe from the negligence of a co-employe in the same general service. This rule, as to railway corporations, has been changed by

statute.

1

1 Quincy M. Co. v. Kitts, 42 Mich. 34; miner and laborer co-employes : Troughear v. Lower Vein Co., 62 Iowa, 576; Kielley v. Belcher Co., 10 M. R. 11.

(1)

It is insisted, however, that the case above cited is not conclusive as an authority in this, because Watson was boss or foreman having charge and control of the plaintiff and another employe.

It is apparent, however, that Watson was simply an employe engaged in the same general service as the plaintiff. It is true he had, to a limited extent, a control of other employes. It does not appear what was the extent of his authority, except such as can be inferred from the terms used in defining it. Certain it is that it is not averred he had authority to discharge other employes, or that the defendant. was negligent in employing him.

We have, then, for determination, the question whether the defendant is liable for the negligence of a co-employe of a different grade, but who is vested with no authority in the general management of the corporation. It makes no difference if the employe receiving the injury is inferior in grade to the one by whose negligence the injury was caused: Shearm. & Redf. on Neg. § 100. In support of this doctrine many authorities are cited. The same rule is stated in Law of Negligence, by Wharton, § 229, where, however, it is said the rule is otherwise when the employer leaves everything in the hands of an employe, reserving no discretion to himself.

There is no averment in the petition which brings this case within the exception, and no such presumption can be indulged. We are satisfied that the decided weight of authority is in favor of the ruling below.

It is insisted that Harper v. Ind. & St. L. R., 47 Mo. 567 (4 Am. Rep. 353); Lalor v. C., B. & Q. R. Co., 52 Ill., 401; (4 Am. Rep. 616); Flike v. Boston & Albany R. Co., 53 N. Y. 549 (13 Am. Rep. 545); and Malone v. Hathaway, 64 N. Y. 5 (21 Am. Rep. 573), sustain the position of appellant. Even if this were so, and we were to follow such decisions, the effect would be to overrule Sullivan v. M. & M. R. R. before cited, and this, in view of the legislation on this subject, we should feel unwilling to do. But counsel are mistaken as to the rule established in the foregoing decisions. The facts in the two last cases show them to be fairly within the exception above stated. In the other two cases the corporation was

held liable, but upon an entirely different principle; Counsel also cite Kellog v. Payne, 21 Iowa, 575, and Callahan v. B. & M. R. R., 23 Id. 563. Neither of these cases are applicable to the case in hand.

Affirmed.

WRIGHT V. RAWSON.

(52 Iowa, 329. Supreme Court, 1879.)

1 Miner killed while off duty. An employe in a coal mine left the room where he was at work, and went to another, according to custom, to visit some other employes there at work, and while there the roof fell in, by reason of the decay and insufficiency of the supports, and killed him. Held, that not being engaged in the line of his duty at the time of the injury he stood in the same relation as a visitor to the mine and could not complain of defendant's negligence.

Action for negligence causing the death of plaintiff's intestate; the defendant had judgment below on demurrer. B. A. WILLIAMS and SMITH & BAYLIES, for appellant.

BARCROFT, GIVEN & MCCAUGHAN, for appellee.
BECK, C. J.

The petition alleges that defendant is the owner of a coal mine, and is engaged in mining coal therein, and that plaintiff's intestate was employed as a miner by defendant. The petition then proceeds to set out the cause of action in the following words:

"That defendant and his superintendent knew that it was the custom of miners in said mine and had been the custom from the time said mine was opened, when not actively engaged in work, to visit each other in their respective rooms.

"That with fuil knowledge of such custom defendant acquiesced in it, and thereby invited and permitted them so to do.

1See Higham v. Wright, 10 M. R. 24; Brydon v. Stewart, 2 Macq. Sc. App. 30.

"That prior to said 15th of October, 1877, there was a room in said mine that had been at one time used by defendant for mining coal, but said room had been unused for about six months prior to said 15th of October, 1877, and during the time of such non-use the supports to the roof of said room had become decayed and weakened, and the rock, slate and dirt composing the roof had become weakened and loosened, so that the same was defective and dangerous, and was well known to be defective and dangerous by defendant and his superintendent, on said 15th of October, 1877.

"That the defective and dangerous condition of said room. was entirely unknown to said Samuel Wright.

"That on said 15th of October, and while said room and roof were in the dangerous and unsafe condition aforesaid, the defendant, by his superintendent, carelessly and negligently caused two of defendant's employes to go to work in said room digging coal, and thereby caused said Samuel Wright and other employes to believe that the said room, and the roof thereof, were safe and not dangerous to be used and occupied, and thereby invited and permitted the said Wright and other employes in said mine to go into said room, where two of defendant's employes were at work, as aforesaid, in accordance with their usual and known custom, and without warning the said Wright, in any manner, that the said room was dangerous to be occupied or entered.

"That on said 15th of October said Samuel Wright was at work for said defendant as a miner, in a room in said mine near to the said defective and dangerous room, when, about 11 o'clock of said day, and being at leisure for a few minutes and knowing that miners were at work in said room, and not knowing its dangerous condition, and acting upon the aforesaid custom and the acquiescence of defendant as aforesaid therein, and relying upon defendant to keep said premises in a safe condition for use, entry and occupancy, as it was his duty to do, he, the said Wright, stepped out of the room where he was at work and into said dangerous room for the purpose of speaking to the men therein employed, and immediately after he had entered said room, owing to the dangerous and defective condition of the roof thereof and the decayed and insufficient supports for the same, as aforesaid, four tons of rock,

slate and dirt, composing the roof of said room, fell upon the said Samuel Wright, whereby he was instantly killed.

"That the death of said Wright, as aforesaid, was directly caused by the carelessness and negligence of defendant in permitting said roof to become loosened and weak, the props and supports thereof to become decayed and unsafe, and in causing his servants to occupy and use such room in such dangerous and unsafe condition, and in permitting, and by his conduct and acquiescence inviting, the deceased and others employed in said mine to use, occupy and enter said room, without adopting any rules to prevent them from being exposed to said danger, of which defendant had knowledge, and without warning them or said deceased of such danger."

The demurrer assails the petition on the grounds, among others, that "it shows the deceased was not, at the time of injury, in the line of his duty, in the service or employment of defendant," and "it does not show that defendant was charged with any care or diligence to protect persons visiting said room from danger of injury by the falling of the roof of said room

In order to eatablish liability of defendant it must be made to appear that the intestate was in defendant's employment and in the proper discharge of duty, and that he did not voluntarily seek a piace of danger. It can not be claimed that defendant would be liable if intestate had been a visitor to the mines, or had left his proper place and sought the dangerous room without thereby serving defendant or discharging any duty of his employment. When the accident happened it clearly appears that the intestate was not engaged in mining, which was his employment; that his proper place was not in the room where he was injured, but on the contrary, he was a visitor there for his own pleasure or amusement. The intestate not being engaged in his employment was in the same position of a visitor to the mine. As an employe, having voluntarily put himself in danger, he can not recover: Doggett v. Ill. Cent. R. R., 34 Iowa, 284.

The custom of miners to visit their fellow workmen, and the acquiescence of the defendant in such custom, can not be regarded as an invitation for the workmen to leave their proper places and frequent dangerous parts of the mine at the risk of defendant.