
    Albert Spevack, Administrator of the Estate of James Spevack, Deceased, Appellant, v. Coaldale Fuel Company.
    Evidence: Res gestae. Statements of the manner of an accident 1 resulting in death the following day, made by deceased within a few minutes after the accident, are admissible as part of the res. gestae.
    
    Mines and mining: negligence of operators : evidence. An agree-2 ment between the owners and operators of mines providing that the operators should furnish timbers and the miners should keep the rooms securely propped has relation to the duty of the operators concerning the safety of the miners, and not their duty toward drivers in the operation of cars for the removal of coal; so that evidence of a custom making it the duty oí- certain employees to- keep the tracks in a safe condition for drivers after the roof had been propped for working the mine was admissible, as bearing on the duty of the operator to a driver.
    Same: proof of custom. Where it is customary for a pit boss and 3 timbermen to inspect the entries and deserted rooms used as entries, through which coal was hauled, the driver of a car may rely on such custom as a protection against danger from improper timbering. «
    Same: vice principal; negligence. A pit boss charged with the 4 duty of seeing that entries in a mine are kept in a safe condition is a vice principal, whose negligence will charge the master with liability for failing to furnish the driver of a coal car a safe place to work.
    Same: contributory negligence: evidence. Under the evidence in 5 this case the question of whether plaintiff was negligent in being caught between the mule he was driving and the car was for the jury.
    Same: negligence: evidence. Whether the mine operator in this^ 6 instance used reasonable care in the inspection and timbering of the entries and in maintaining the tracks in reasonbly safe condition, was for the jury. It is also held that the question of whether defendant had assumed toward plaintiff the obligation of looking after the safety of the entries was for the jury.
    Same: negligence of master: evidence. The evidence is reviewed 7 and held sufficient to show negligence of defendant in allowing a timber with protruding spikes to remain over the track in such position that the harness of the mule decedent was driving might catch thereon causing a collision of the car with the mule, between which decedent was compelled to ride.
    
      Appeal from Polls District Court. — How. Hugh Brennan, Judge.
    Thursday, June 8, 1911.
    Action to recover damages for loss to the estate of James Spevack resulting from his death alleged to have been due to the negligence of defendant company, in whose employment he was engaged at the time of his death as driver in its coal mine. At the conclusion of the evidence introduced on both sides, the court on defendant’s motion directed a verdict in its favor, and from judgment on this verdict the plaintiff appeals.
    
    Reversed.
    
      E. A. Lingenfelter, for appellant.
    
      Carr, Carr & Evans, for appellee.
   McClain, J.

There was evidence tending to show that decedent, an experienced coal miner, was employed on the day of the accident in question as a driver in defendant’s mine, and that it was usual for the driver to crouch between the mule and the loaded car, his left hand on the back of the mule, his left foot on the draw chain, his right foot on the bumper of the. car, und his right hand on the car itself; it being necessary for him to ride in this position because the entries through which the cars must be hauled were little higher than the back of the mule. The evidence also tended to show that, after the accident, decedent was found at what is 'called the “parting” in an entry, complaining of ’ having been injured by getting squeezed coming out of a room with a car of coal, and that the mule got caught on a cap piece of the timbering and the car squeezed him. A witness who heard deceased make this statement was directed by the pit boss to go back along the entry and find the mule and car which he did, and found the car with the mule still attached, the hind wheels of the car off the track at a place in a room designated as No. 1, turned off from entry D, in which decedent was found, and about thirty-five feet from the entry, a tie, similar to the ties used in laying the track was found hanging by a projecting spike from the hames of the mule. There was also evidence tending -to show that such ties were sometimes used as cap pieces by the miners in erecting supports for the roof as the mining progressed, and that about fifteen to eighteen feet back of the car a prop was leaning. The jury might have found from this evidence, including the declarations of deceased that a tie with a spike projecting from its lower side had been used as a cap piece on top of a prop in room seven; that, as the mule driven by decedent passed under it, the spike caught in the hames of the mule, causing him to be suddenly stopped, so that the loaded car ran against him, squeezing decedent, who was riding in the usual position between the mule and the car; and that as a result the cap piece was forced from its place, and remained hanging on the hames of the mule. As a result of the injury received by decedent he died the next day at the hospital; it being discovered by post mortem examination that his intestines had been ruptured by the injury. The negligence alleged was in failure to provide decedent with a safe place in which to work, and the principal controversy was ns to whether at the place of the happening of the accident the defendant was chargeable with the condition of the props and cap pieces supporting the roof which had been originally placed by the miners working in room seven as the work progressed. With reference to this question, the evidence will be more fully commented upon in the second division of the opinion.

I. The only direct evidence which placed the injury to decedent as happening where the mule and car were found consisted of the declarations of deceased made in entry D, some little distance from room- seven, -(¡bat be had been hurt by being squeezed between the mule and the car; it appearing that -a short time before the accident deceased had been driving this particular mule. In this connection the contention for defendant is that the declarations of deceased were not a part of the res gestae, and therefore not admissible, and without such declarations it would not 'appear where or how the injury to decedent occurred. We think, however, that the declarations were sufficiently connected with the accident and were made within such a short interval of time after it occurred that they were properly received in evidence. Under all the circumstances, it is clear that but a few minutes could have intervened between the time when the injury was received and the time when the declarations as to the cause of the injury were made. . For the purpose of connecting the injury with the accident, the relation between the two was sufficiently close to. render the declarations admissible. Rothrock v. Cedar Rapids, 128 Iowa, 252, and oases cited.

II. In order to solve the question whether there was any evidence tending to show that at the place where the accident happened the defendant was chargeable with the duty of seeing that the props and supports were in safe condition with reference to the use of the track by decedent for the purpose of his employment as driver, some further details of the evidence must be noticed. Entry D was a long entry, through which cars loaded with coal were hauled to the shaft. Off of this entry successive rooms and air courses had been turned. One of the rooms 'thus opened off of the entry was room seven, where the accident occurred, which had been in use as a room for more than a year. At the time of the accident, it was of a length of about two hundred and twenty-five to two hundred and fifty feet from the entry ,to the face of the coal at its extreme end where mining was still being carried on. At the side of this room seven, about one hundred and twenty-five feet from the entry, another room had been opened from which cars of coal were drawn out along the track, as well as cars of coal from the extreme end of the room, and the place at which the accident happened was nearer the entry than, the opening into this side ,room. Some of the witnesses designate room seven thus used .as a subentry. With reference to this situation, defendant introduced in evidence from “The Des [Moines Agreement of the United Mine Workers and Operators,” which applied to the operation of this mine certain resolutions, in which it is recited that the company shall furnish all necessary timbers and the miners shall keep thfeir rooms securely propped; that if a miner working in a room fails to securely prop the same or neglects to prop as directed by the pit foreman, or carelessly shoots down the props or timbers, and a fall of slate occurs through such failure, neglect, or carelessness, he shall immediately clear his roadway of such falls of slate and do all necessary retimbering, and, in case of his neglect to do so, the company may do such work and charge the expense thereof to such miner; further, that, in case the room has been properly timbered and the roof from any cause becomes so heavy as to require double timbering, the company shall, when notified by the miner, do the necessary work to protect the roadway; and, further, that, when a fall of slate shall occur between the inside props and the face of the room of an averaging thickness not to exceed three inches, he shall immediately remove such fall, and, in case of his failure to do so, the company may do such work and charge the expense thereof to such miner, while, i,f the fall is of a greater thickness, he shall notify the pit foreman who is to furnish the necessary labor to make such removal. It is contended for defendant that, under these resolutions, the safety of the roof and the sufficiency of the timbering was left to the miners in charge of the rooms, and that, if the timbering was improper so as to result in injury to decedent, the fault was with the miners themselves, who had erected the props, and who were fellow servants of the decedent. Plaintiff offered evidence tending to show a custom and usage by which it was the duty of the pit boss and the timberman working under him to maintain all the tracks and roads in the mine in a safe condition for the drivers, after the miners had set up their timbers as they worked out the room. Although this testimony as to custom and usage had been 'admitted, the trial court on defendant’s motion struck it put as being irrelevant to any issue in the case, and of this ruling appellant complains.

We think the ruling was erroneous. The resolutions above referred to evidently related to the duty of the defendant with reference to the safety of the miners, and not with reference to its duty as to the safety of drivers employed in their work in operating cars and the removal over such tracks of coal from distinct portions of the room or from other rooms which had been opened from it. It is conceded that defendant was chargeable with the duty of maintaining the entries in a safe condition for use by the drivers and the portion of room seven in which the accident happened was not in the nature of its use different from an entry.

If it was customary for the pit boss and the timber-man working under him to inspect the entries and those portions of the rooms which were used practically as entries through which coal should be hauled, decedent had, we think, a right to rely upon such custom as a protection against danger from improper timbering. We gee n0^]1ing | cllstom and usage inconsistent with the resolutions above referred to, for they relate to different and distinct dangers. Surely decedent in driving along a track which | had been in use for a year was justified in assuming thai; such tracks and the supports over it had been inspected by the defendant’s pit boss, and that they were being kept in safe condition for his use. The miners working in the remote portion of the room had no further responsibility with reference to such supports in seeing that they remained safe and in a suitable condition for decedent’s use.

If the pit boss was negligent in the inspection, of the track at the place where the injury happened or in seeing that the supports were proper in order that plaintiff might safely pursue his work in the usual manner, then the defendant failed to use reasonable care in providing for decedent a safe place to work, for in this respect the pit boss was necessarily a vice principal, and not merely a coemployee. Decedent had had nothing to do with the preparation of this place to work, and he was not chargeable with any duty of general inspection.

If it should be contended that he was guilty of contributory negligence in not discovering and avoiding the danger of the cross-piece above the entry from which spikes protruded being caught by the "harness of the mule in passing under, it is sufficient to say that the question must necessarily be for the jury, because this portion of the track was not lighted, and the only means of discovering the condition of the overhead supports was by the light from the lamp in decedent’s cap which was the only light available to him in the driving of his mule and the operation of the car.

With this evidence of custom and usage properly in the case, it was for the jury to say whether the, defendant had used reasonable care in the inspection of the track and the timbering and in main- . . . taming the track and supports in a reasonably safe condition for decedent’s use.

Some question is made for defendant as to whether there was any competent evidence of custom and usage; the contention being that the testimony relating thereto had reference to some assumed subordinate agreement between the miners’ union and the defendant, which was not proven. But we are satisfied that without any evidence of such subordinate agreement there was still enough evidence to go to the jury on the question whether in the operation of this mine defendant had by its method of conducting its operations assumed toward decedent the obligation of looking after the safety of the place so far as he and persons in similar employment were concerned. On this question the following language from the opinion in the case of Thayer v. Smoky Hollow Coal Co., 121 Iowa, 121, is1 quite pertinent:

One of the close questions in the case was, of course, the defendant’s duty to look after the safety of the place where plaintiff received his injury. If plaintiff were making the place himself, and was solely responsible for its creation, condition, and care, then, of course, the rule as to the duty of the master to furnish his employee a safe place to work does not apply. On the other hand, if defendant had assumed the care of the place or was required to inspect and care for it, then it was liable if it failed to exercise ordinary care and diligence in looking after the safety of its employees, who were required to use the place in going about their work. The rules of law which apply to such cases are well understood and explained in Union Pac. v. Jarvi, 53 Fed. 67 (3 C. C. A. 433). But the exact time when a master’s duty begins. is not fixed by any arbitrary rules. We have already held that evidence of custom and usage. is material on this question, for such evidence does not vary an established rule of law, or in the absence of express stipulations and definite contract relations between the parties. Taylor v. Star Coal Co., 110 Iowa, 40. If the employee was in control, then he was urn der a statutory duty to prop the roof and properly timber the entry; but, if this was a duty devolving upon the defendant by reason of custom or otherwise, then the obligation rested on it, and not on its employee, who was without authority or control. This matter has already been decided against appellant in Corson v. Coal Mill Co., 101 Iowa, 224, as well as in the Taylor case, supra.

III. The suggestion that there was no evidence tending to pi'ove negligence of the defendant with reference to the condition of the support o^er the track at the place where the accident happened is fully met by "the testimony which tended to show that this portion of room seven had been in use practically as an entry for a considerable length of time; ■that it was the custom to inspect the entries and portions of rooms thus used daily; and that the supports over the track where the accident happened must have been in place for a considerable period of time. The jury might well have found that there was negligence on the part of defendant in allowing this cap piece with projecting spikes to remain in position over the track at this place with the danger that the harness of a mule passing under it might be caught, with the natural result that the mule should be checked and the loaded coal car following him should run ■against the driver crouching between the mule and the car.

As we think the court erred in striking out the evidence as to custom ‘and usage and in directing a verdict-for defendant, the judgment is reversed.

Appellant’s motion submitted with the case to strike appellee’s amendment to the abstract on the ground that it was not filed within the time required by the rules is overruled. It does not appear that the delay in filing the amended abstract operated in any way to appellant’s prejudice or was unreasonable under the circumstances shown by affidavits in resistance to the motion. Tbe judgment is reversed.  