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Delaski v. Northwestern Improvement Co.

112 P. 341, 61 Wash. 255, 1910 Wash. LEXIS 1325
CourtWashington Supreme Court
DecidedDecember 16, 1910
DocketNo. 8656
StatusPublished
Cited by4 cases

This text of 112 P. 341 (Delaski v. Northwestern Improvement Co.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delaski v. Northwestern Improvement Co., 112 P. 341, 61 Wash. 255, 1910 Wash. LEXIS 1325 (Wash. 1910).

Opinion

Gose, J.

The appellants are respectively the surviving wife and minor children of John Delaski, deceased. They brought this action to recover damages sustained by reason of the death of the- husband and father, alleging that his death was caused by the inhalation of poisonous gases negligently permitted to accumulate in the coal mine of the respondent. At the close of the appellants’ evidence, a judgment of nonsuit was entered. This appeal followed.

The respondent has moved that the statement of facts be stricken and the judgment affirmed. The grounds of the motion are, (1) that the statement was filed on the ninety-first day after the entry of the judgment, and (2) that the certificate of the judge is defective in that he only certified that the statement contains “all the material evidence and testimony introduced upon the trial.” A part of the evidence set forth in the statement is in a condensed and narrative form. On the 2d day of August, which was the 84th day after the time for taking the appeal had commenced to run, an order was entered giving the appellants until the 8th day of August, which was the 90th day, in which to file and serve a statement of facts. The 8th day of August fell upon Sunday, and the statement was filed and served the following day. Where the last day for [257]*257the performance of an act falls upon Sunday, it is excluded in the computation of time. Rem. & Bal. Code, § 252; Rogers v. Trumbull, 32 Wash. 211, 73 Pac. 381; Bank of Shelton v. Willey, 7 Wash. 535, 35 Pac. 411; Spokane Falls v. Browne, 3 Wash. 84, 27 Pac. 1077. This court has held that the testimony may be certified in the narrative form, and that a certificate like the one in the case at bar meets the requirements of the statute. Murray v. Shoudy, 13 Wash. 33, 42 Pac. 631. The motion to dismiss is denied.

The record presents the following material facts: The deceased, an experienced miner, was thirty-five years of age, and on the morning of the day of his death, which occurred in the afternoon of August 8, 1905, was in good health. He and his minor son, twelve years of age, were working in a coal mine at Roslyn, called mine No. 2, in room 14, on the tenth level. At twelve o’clock they retired to the entry, or incline as it is called in the testimony, to eat their lunch, and returned to their work in room 14 about fifteen minutes later. When they had reached the gangway going to their lunch, they heard a blast or shot in room 10. As they returned to their work, they observed smoke coming from rooms 11 and 12 and in the gangway. The face of the coal in room 14 where they were working was 137 feet distant from the gangway, and there was no connecting crosscut from room 12. About a half hour after they returned to their work the boy became sick and dizzy, and his father directed him to go to a point near the gangway where they had left a bucket containing coffee, and get a drink. As he was returning, his father called to him for a drink, and the boy returned to get the coffee. The father fell about fifteen feet from the face of the coal where he had been working, before the boy could return to him, was taken out of the mine in an unconscious condition, and died about four hours later without having regained consciousness. He was proceeding toward the gangway when he fell. The evidence tends to [258]*258show that his death was caused by the inhalation of poisonous gases. He and the boy had worked in rooms 13 and 14 for about three months before the accident occurred. The foreman had directed the employees not to fire shots between shifts. The day shift was from 8 a. m. to 4:30 p. m. Notice to that effect was posted on the outside of the mine. The brattices or canvas curtains, which were hung from the roof across the gangway between rooms 13 and 14, were torn and defective. Their purpose was to deflect the air current from the gangway into and through the several rooms. It was the duty of the fire boss to see that they were kept in repair. The appended map will illustrate the working plan on the 10th level:

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Related

Pacific Coast Coal Co. v. Brown
214 F. 255 (Ninth Circuit, 1914)
Dollar v. Northwestern Improvement Co.
129 P. 578 (Washington Supreme Court, 1913)
Delaski v. Northwestern Improvement Co.
126 P. 421 (Washington Supreme Court, 1912)
Nalewaja v. Northwestern Improvement Co.
115 P. 847 (Washington Supreme Court, 1911)

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Bluebook (online)
112 P. 341, 61 Wash. 255, 1910 Wash. LEXIS 1325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delaski-v-northwestern-improvement-co-wash-1910.