Edwards' Admr. v. Lam

116 S.W. 283, 132 Ky. 32, 1909 Ky. LEXIS 91

• Court: Court of Appeals of Kentucky
• Decided: February 10, 1909
• Status: Published

Opinions

Opinion op the Court by

Judge Hobson

Reversing.

James Boyd Edwards was a miner, working in the mine of the defendant, J. W. Lam, and on November 21,1907, be was fatally burned by an explosion wbicbi occurred in the mine. He died a few days afterward, and this suit was brought by his administratrix to recover for his death on the ground that the statutory provisions for the safety of the mine had not been complied with; it being in effect alleged in the peti-| tion that the requirements of the statute as to ventila-. tion had all been violated. An answer was filed controverting the allegations of the petition, and on final hearing there was a verdict and judgment for the defendant. The plaintiff appeals. j

Section 2731, Ky. Stats., 1909, among other things, provides: “The owner, agent or lessee of every coal mine, whether slope, shaft or drift, to which this act applies, shall provide and maintain for every such mine an amount of ventilation of not less than one hundred cubic feet of air per minute per person employed in such mine, which shall be circulated and distributed throughout the mine in such a manner as to dilute, render harmless and expel the poisonous and noxious gases from each and every working place in the mine; and no working place shall be driven more than sixty feet in advance of a break-through or airway; and' all break-throughs or air-ways except those last made near the working-face of the mine, shall be closed up and made air-tight by brattice, trap-doors or otherwise, so that the currents of air in circulation in the mine may sweep to the interior of the excavations where the persons employed in the mine are at work; and all mines governed by this statute shall be provided with artificial means of producing ventilation, such as suction or forcing fans, exhaust steam, furnaces, or other contrivances, of such capacity and power as to produce and maintain an abundant supply of air.” The plaintiffs introduced proof on the trial to the effect that the explosion occurred about 4:30 p. m. There was suddenly a sound of a rushing wind like a cyclone, and then a wave of flame swept down the entry, the smoke and flame blowing out of the shaft above ground. That the explosion occurred in this way was not controverted by the evidence, and there was no controversy as to the injury of the deceased, or that he was a miner in the service of the defendant; but there was a sharp controversy as to the cause of the explosion. The proof for the plaintiff was to the effect that the air in the mine was bad that afternoon; that there was a want of ventilation; that two of the entries had been driven more than 60 feet in advance of a break-through or air-way; and that the break-throughs which had been closed up as required by the statute had not been properly closed so as to be airtight or anything like that; that the furnace which was' used to produce artificial ventilation had no stack, the stack having been blown down about a month before, and not having been replaced, and that from the want of the stack the furnace had no draft, especially when the wind was blowing as it was that afternoon, and that there was little or no fire in the furnace. On the other hand, the proof for the defendant was' to the effect .that there was a good fire in the furnace and that the ventilation in the mine was good, and the air good. The defendant also showed that the shots in the mine should be fired about five minutes apart, so that the gases generated by one shot would pass out before another shot was fired, but that on the evening in question the miners had fired off a number of shots immediately in succession and that, when the last shot was fired, the explosion took place, and was what is called a “powder explosion” — that is, it was an explosion caused by gas generated from the shooting off of so much powder in the mine. On this proof the court gave the jury these instructions:

“ (1) The.oourt instructs the jury that if they shall believe from the evidence that on the occasion when plaintiff’s intestate was injured the defendant, Lam, caused or permitted the working places in said mine to be driven more than 60 feet from a break-through or air-way, or that the defendant, Lam, on said occasion failed to provide a furnace or other contrivance of such capacity and power as to produce and maintain an abundant supply of air in said mine, and if the jury shall further believe from the evidence that an explosion was caused by the defendant’s aforesaid acts or omission, if any, or by any of them, and if the jury shall further believe from, the evidence that the said explosion was the direct and natural result of the aforesaid acts or omissions or any of them, if the defendant did or failed to do any of the things above set out, and if the jury shall further believe from the evidence that the plaintiff’s intestate was burned in said explosion and his death thereby caused, then, and in that event, the jury should find for the plaintiff such compensatory damages as were thereby caused to decedent’s estate, not exceeding $25,000, the amount, claimed. And unless the jury shall believe as set out in this instruction, they should find for the defendant.

“(2) If the jury shall believe from the evidence that the explosion in which the deceased was burned was caused solely by the negligent manner, if any, in which his co-laborers or any of them fired their shots in said mine or mined coal therein on said occasion, then, and in that event, the jury should find for the defendant. ’ ’

Instruction No. 1 is defective, in that it is not as broad as the statute, and does,not show that it was the duty of the defendant to maintain in the mine an amount of ventilation of not less than 100' cubic feet of air per minute for each person employed in it, and circulated and distributed throughout the mine in such a way as to render harmless and expel the noxious gases. This is the statutory definition of the terms ‘ ‘ an abundant supply of air, ’ ’ and to omit it from the instructions was to leave the jury to determine what was an abundant supply of air otherwise. The instruction is also defective, in that it does not show that it was the duty of the defendant to close up the air-ways which were not in use by the miners, and there was proof for the plaintiff that the brattices which were put up were defective, and that the air in the mine before the explosion was bad'. The instructions were also defective in that they imposed no care on the master in the regulation of the firing of the-blasts. The proof shows that the blasts should be fired no closer than five minutes apart, and that they should be fired in regular order beginning next to the point where the air current left the mine, so that the air passing out would take the gas thus generated out. with it. The proof also shows that the defendant .had employed a man whose duty it was to fire the blasts after the miners all left, but- that he was absent, on the day in question, and had been absent for a day or two. In his absence, the miners fired their shots, on the day in question as they usually did when they fired them. There was also evidence that the mine-boss directed the firing of the shot which caused the-explosion, or at least told the miner to fire that shot.. If the firing of these shots in an improper way would endanger the miners, it was incumbent upon the master to exercise ordinary care in regulating the manner-in which they should be fired, and, if he had knowledge that they were being fired by the miners in the manner in which they were fired on the day in question, it was a question for the jury whether his suffering the shots to be fired in this way was the exercise of ordinary care on his part. Edwards had only been in the mine a week. He had nothing to do with the firing of the shots. It is not shown that he had any notice of the danger. The miners in one room or entry would have little opportunity to know what was going on in other rooms and entries, and it was incumbent upon the' master to exercise ordinary care that the work in different rooms should not be so done as to endanger unnecessarily the workmen in other rooms. The second instruction is faulty, in this: That it does not present to the jury the idea that if there was negligence on the part of the other miners., and also negligence on the part of the defendant, the defendant would not be excused although the other miners were negligent, if there was negligence on his. part, and but for this the injury would not have occurred. In lieu of instructions 1 and 2 the court on another trial, if the evidence is the same, will give the jury these instructions:

“(1) It was the defendant’s duty to provide and maintain for the mine an amount of ventilation of not less than 100 cubic feet of air per minute per person employed therein, circulated and distributed throughout the mine in such a manner as to dilute and render harmless and expel the poisonous and noxious gases from- each working place in it. No working-place should be driven more than 60 feet in advance of a break-through or an air-wav. All break-throughs or air-ways except those last made near the working-face of the mine should.be closed up and made airtight by brattice or otherwise, so that the currents of air in circulation in the mine may sweep to the interior of the excavations where the persons employed in the mine are at work; and the mine should be provided with artificial means of producing ventilation such as. a forcing fan, furnace, or other contrivance of such capacity and power as to produce and maintain an abundant supply of air. Now, if the jury believe from, the evidence that the defendant, Lam, failed to perform these duties or any of them, and by reason thereof and as the natural and proximate result of such failure an explosion occurred in said mine, and thereby the plaintiff’s intestate was burned, and his death, was thereby caused, they should find for the plaintiff.

“(2) If the defendant or the mine boss working under him failed to use ordinary care in regulating-the time and manner in which the miners should fire their shots, and negligently allowed them to fire their shots in such a way as to cause the explosion, when,, by the exercise of ordinary care on the part of the defendant or the mine boss, this might have been avoided, and but for this the injury would not have-occurred, the jury should find for the plaintiff.

• ‘ (3) If the explosion was caused solely by the negligent manner in which the miners or any of them fired their shots on said occasion, the jury should find for the defendant; but, if there was negligence o„n the part, of the defendant as set out in No. 1 or No. 2, and. also negligence on the part of the miners as set out above, the defendant is responsible if the explosion would' not have occurred but for the negligence on his part.

“ (4) Unless there was negligence on the part of the -defendant as set out in No. 1 or No. 2, and by reason thereof and as the natural and direct result of such negligence the explosion occurred, the jury-should find for the defendant. ’ ’

The court allowed the defendant to prove by his mine boss or superintendent that the day after the accident he went through the mine, - and the ventilation was good. This proof should not have been admitted. The necessary effect of the explosion was to drive out of the mine the foul air and gas that was in it; for, as the flame and smoke rushed out of the stack, the air from the outside rushed in and took its place. The air the next morning was therefore in a radically different condition from what it was the evening before, and the effectiveness of the furnace would depend upon the amount of fire' that was in it. The proof for the plaintiff showed that there was little or no fire in.the furnace the evening before, and by having a good fire the next morning conditions might have been different. The condition of the air in the mine the next morning would depend upon not only these thing's, but upon so many other conditions that the evidence is too uncertain to1 be proper for the consideration of the jury. The defendant may show, not only what the condition of the ventilation was at the time of the explosion, but what it had been previous to the explosion under similar conditions. But what it was after the explosion was a matter so largely in the control of the defendant that to admit the evidence would be to allow him to make evidence for himself.

We see no other error in the record; but for the reasons given the judgment is reversed, and oause remanded for a new trial.