Whitehead Coal Mining Co. v. Pinkston , 71 Okla. 124 ( 1917 )

After hearing the oral arguments and examining the briefs submitted upon petition for rehearing, the court is convinced that the opinion handed down by the commission is in the main correct and should be approved. The principal grounds for rehearing urged by counsel may be summarized as follows:

(1) The opinion prepared by the commission erroneously holds that the petition of the plaintiff states facts sufficient to constitute the deceased an invitee or licensee of the surface adjacent to the mine.

(2) "Even if it be assumed that plaintiff's intestate did go upon the grounds of the defendant by direct invitation, still that would not constitute an invitation to climb down into the mine of the defendant. He was not injured by walking across the grounds, but his injuries were sustained by his deliberate and intentional act of climbing down into a shaft, without the knowledge or permission of the defendant. In other words, it is not charged in the petition that the defendant had permitted the community to climb up and down a ladder in its shaft; but the only allegation is that it had permitted its grounds to be used as a playground. The deceased did not fall into the shaft."

In our judgment it was not necessary to allege or prove that the decedent was either a licensee or an invitee, in order to entitle the plaintiff to recover. The statute (section 3976, Rev. Laws 1910) is a police regulation enacted for the protection of the public in general. By its terms the mine owner owes to all classes of persons, whether licensee, invitee, or trespasser, the duty of seeing that danger signals be placed at the mine entrance, which shall be sufficient warning to all persons not to enter the mine.

The petition alleges a violation of this statutory duty on the part of the defendant. It is well settled that the failure to perform a statutory duty imposed by a valid statute under the police power of the state for the protection of the public is negligence per se. Richardson v. El Paso Consol. Gold Mining Co., 51 Colo. 440, 118 P. 982. If the petition is obscure in any particular in stating facts sufficient to constitute a cause of action under the statute, we would say it is in the allegation which describes the mine as "an unused or abandoned mine." The appliable part of the statute relates to "all mines where operations are temporarily or indefinitely suspended." In view, however, of the statute (section 4766, Rev. Laws 1910), which provides that in the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed, we are constrained to hold that the petition is not fatally defective in this respect.

For these reasons, in addition to those stated in the original opinion, the petition for rehearing is denied.

All the Justices concur, except OWEN, J., who dissents.