Hire, C. J.
The appellee, a coal miner, sued the appellant mining company for damages for personal injuries received in the mine from an alleged gas explosion caused by negligent failure of the appellant to properly ventilate the mine. The ReporteT will abstract the pleadings and instructions discussed.
11 The first question met is the denial of appellant’s petition for change of venue. The petition was in due form, properly verified, and presented in apt time. The record as to its disposition is as follows: “And the court, after hearing the evidence and being well and sufficiently advised in the premises, doth overrule said motion, and the defendant excepts.” The bill of exceptions recites that “upon the hearing of this motion at request of plaintiff, and over the objection of defendant, the panels of the petit jury were called for examination, to which action of the court in calling for and examining the jurors upon said panels the defendant at the time excepted.” Thereupon each juror was asked (without being sworn) if he had any prejudice against the defendant, and if he was acquainted with the plaintiff. All these questions were answered negatively except in one instance; one juror knew the plaintiff by’sight. These questions' were all over the objection and exception of defendant. “Thereupon,” to follow the language of the bill of exceptions, “the petition for change of venue was denied.” Whether this was all the evidence adduced on the hearing, or only part of it, is not clear. Whether these were the only questions to the jury when they were examined does not affirmatively appear. It is urged that this examination of the panel of the jury does not overcome the verified petition, but the record does affirmatively show that eyidence was heard, and, the bill of exceptions failing to show that these questions asked the jurors were all the evidence before the court, the presumption is that there was evidence to sustain the finding. The examination of the jury along the line indicated would be merely a circumstance of more or less probative force tending to negative the allegations of prejudice against the defendant or its cause of defense. To determine whether a change of venue should be granted merely upon statements from the jurors that they have no prejudice against the defendant is equivalent to holding that if a qualified jury can be selected from the panel the change of venue must be denied. Manifestly, this is not the law. Jurors are as competent as other persons to testify to the nonexistence of prejudicial sentiment in the county, but the decision of the question should not hinge on whether these jurors are, or are not, themselves prejudiced; and it would be better to get this evidence outside the jury box. Whether these answers elicited from the jury would of themselves be sufficiently probative to overcome the petition and supporting affidavits need not be and is not determined, because in the state of the record the presumption is that there was sufficient evidence to support the finding.
2. The plaintiff proved substantially these facts: He was working in room 4, and adjoining his room was room 5, opening into a common entry. The progress of the work called for an opening to be made from his room to room 5 for purposes of ventilation. This opening, or “breakthrough” as it is called, had to be made by Jones, as the miner in room 3 had made the breakthrough to Jones’s, rendering it his turn to continue the air course and connect with 5. On the day before the accident, in preparation of this work, Jones and the miner in 5, Everett, made soundings to ascertain the width of the coal between the rooms, and they decided, as a result of such test, that the distance was twelve feet. Thereafter on the same day of the sounding Jones put in a “widening out” shot in his room, to blast out part of this intervening coal. His blast took from the wall about five feet, as he thought. The next day, Everett was not in his room (No. 5) and the “fire boss,” who represents the master in matters of ventilation, came to Jones’s room, and inquired for Everett. He was new to this mine, and supposed that Everett should make the breakthrough to Jones, but, learning that it was Jones’s turn to make the breakthrough, told him to do it that day. The “fire boss” “deadlined” Everett’s room, which is a method of marking the room as dangerous and forbidding' entrance thereto. He put the marks usually signifying gas, but explained that he did not find gas in the room; merely that it had gone to the point when the air was bad on account of lack of1 ventilation, and he “deadlined” it to keep the miner out till the breakthrough was made. There is no evidence that Jones had knowledge of gas in room 5, or that it was “deadlined.” He merely, knew that Everett was not in the mine that day, and the fire boss told him to complete his breakthrough that day. Jones went to work to malee the breakthrough. He mined away coal to the depth of four feet, and above that bored a hole eighteen inches beyond the depth he had mined, and put his shot consisting'of a load of one pound of powder into it. After properly tamping the shot and attaching and lighting the fuse, he retired ninety feet, well back into the entry. The shot caused an explosion which severely burned him, shocked miners further away, and burned a “brattice cloth” two hundred feet from the shot. The evidence of defendant tended to prove: (1) That there was no gas in the room 5, and the explosion was from this shot being defectively placed, called a “windy shot;” in other words, the explosion was purely of the powder,, which was not properly confined and spread into the mine. (2) That the shot placed by Jones was negligently placed, and, if it had been properly placed, would not have caused an explosion, even if there was gas in room .5. This involved two propositions, (a) the placing of the shot into the solid coal beyond the cutting, and (b) placing it in a few inches from the wall of room 5, not having it far enough back to have proper resistance in front of it, causing it to blow the charge of powder and explode it into room 5. The issue first raised by this evidence, that it was a powder explosion and not a gas one, is out of the case on appeal, for the court instructed the jury in the ninth instruction: “If the plaintiff was burnt by the powder from his shot, and not from gas, your verdict should be for the defendant.” The evidence abundantly sustains the verdict that it was from gas, and not from the powder. Therefore the issue narrows to whether Jones was negligent, either in the manner of placing the shot in the solid, or in placing it too near the rib of the next room. In view of the finding of the jury, and the evidence, it must be taken that this shot would have been harmless, had not gas accumulated in room 5. In other words, the negligence of the company is established under proper instructions on this issue. For injuries from the accumulation of gas due to lack of ventilation, the company is clearly liable; but, if Jones was negligent in fulfilling his duties in making the breakthrough, which negligence contributed to the explosion, the company is not liable. The witnesses differed as to the shot fired by Jones, some justifying it as proper and a skillful mining, and others as negligence. This is the issue of fact which should have been sharply drawn in an instruction, and sent to the jury for its determination. Instead of that, abstract and involved statements of the law of master and servant are given that could not be prejudicial to either side or helpful to the jury.
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Hire, C. J.
The appellee, a coal miner, sued the appellant mining company for damages for personal injuries received in the mine from an alleged gas explosion caused by negligent failure of the appellant to properly ventilate the mine. The ReporteT will abstract the pleadings and instructions discussed.
11 The first question met is the denial of appellant’s petition for change of venue. The petition was in due form, properly verified, and presented in apt time. The record as to its disposition is as follows: “And the court, after hearing the evidence and being well and sufficiently advised in the premises, doth overrule said motion, and the defendant excepts.” The bill of exceptions recites that “upon the hearing of this motion at request of plaintiff, and over the objection of defendant, the panels of the petit jury were called for examination, to which action of the court in calling for and examining the jurors upon said panels the defendant at the time excepted.” Thereupon each juror was asked (without being sworn) if he had any prejudice against the defendant, and if he was acquainted with the plaintiff. All these questions were answered negatively except in one instance; one juror knew the plaintiff by’sight. These questions' were all over the objection and exception of defendant. “Thereupon,” to follow the language of the bill of exceptions, “the petition for change of venue was denied.” Whether this was all the evidence adduced on the hearing, or only part of it, is not clear. Whether these were the only questions to the jury when they were examined does not affirmatively appear. It is urged that this examination of the panel of the jury does not overcome the verified petition, but the record does affirmatively show that eyidence was heard, and, the bill of exceptions failing to show that these questions asked the jurors were all the evidence before the court, the presumption is that there was evidence to sustain the finding. The examination of the jury along the line indicated would be merely a circumstance of more or less probative force tending to negative the allegations of prejudice against the defendant or its cause of defense. To determine whether a change of venue should be granted merely upon statements from the jurors that they have no prejudice against the defendant is equivalent to holding that if a qualified jury can be selected from the panel the change of venue must be denied. Manifestly, this is not the law. Jurors are as competent as other persons to testify to the nonexistence of prejudicial sentiment in the county, but the decision of the question should not hinge on whether these jurors are, or are not, themselves prejudiced; and it would be better to get this evidence outside the jury box. Whether these answers elicited from the jury would of themselves be sufficiently probative to overcome the petition and supporting affidavits need not be and is not determined, because in the state of the record the presumption is that there was sufficient evidence to support the finding.
2. The plaintiff proved substantially these facts: He was working in room 4, and adjoining his room was room 5, opening into a common entry. The progress of the work called for an opening to be made from his room to room 5 for purposes of ventilation. This opening, or “breakthrough” as it is called, had to be made by Jones, as the miner in room 3 had made the breakthrough to Jones’s, rendering it his turn to continue the air course and connect with 5. On the day before the accident, in preparation of this work, Jones and the miner in 5, Everett, made soundings to ascertain the width of the coal between the rooms, and they decided, as a result of such test, that the distance was twelve feet. Thereafter on the same day of the sounding Jones put in a “widening out” shot in his room, to blast out part of this intervening coal. His blast took from the wall about five feet, as he thought. The next day, Everett was not in his room (No. 5) and the “fire boss,” who represents the master in matters of ventilation, came to Jones’s room, and inquired for Everett. He was new to this mine, and supposed that Everett should make the breakthrough to Jones, but, learning that it was Jones’s turn to make the breakthrough, told him to do it that day. The “fire boss” “deadlined” Everett’s room, which is a method of marking the room as dangerous and forbidding' entrance thereto. He put the marks usually signifying gas, but explained that he did not find gas in the room; merely that it had gone to the point when the air was bad on account of lack of1 ventilation, and he “deadlined” it to keep the miner out till the breakthrough was made. There is no evidence that Jones had knowledge of gas in room 5, or that it was “deadlined.” He merely, knew that Everett was not in the mine that day, and the fire boss told him to complete his breakthrough that day. Jones went to work to malee the breakthrough. He mined away coal to the depth of four feet, and above that bored a hole eighteen inches beyond the depth he had mined, and put his shot consisting'of a load of one pound of powder into it. After properly tamping the shot and attaching and lighting the fuse, he retired ninety feet, well back into the entry. The shot caused an explosion which severely burned him, shocked miners further away, and burned a “brattice cloth” two hundred feet from the shot. The evidence of defendant tended to prove: (1) That there was no gas in the room 5, and the explosion was from this shot being defectively placed, called a “windy shot;” in other words, the explosion was purely of the powder,, which was not properly confined and spread into the mine. (2) That the shot placed by Jones was negligently placed, and, if it had been properly placed, would not have caused an explosion, even if there was gas in room .5. This involved two propositions, (a) the placing of the shot into the solid coal beyond the cutting, and (b) placing it in a few inches from the wall of room 5, not having it far enough back to have proper resistance in front of it, causing it to blow the charge of powder and explode it into room 5. The issue first raised by this evidence, that it was a powder explosion and not a gas one, is out of the case on appeal, for the court instructed the jury in the ninth instruction: “If the plaintiff was burnt by the powder from his shot, and not from gas, your verdict should be for the defendant.” The evidence abundantly sustains the verdict that it was from gas, and not from the powder. Therefore the issue narrows to whether Jones was negligent, either in the manner of placing the shot in the solid, or in placing it too near the rib of the next room. In view of the finding of the jury, and the evidence, it must be taken that this shot would have been harmless, had not gas accumulated in room 5. In other words, the negligence of the company is established under proper instructions on this issue. For injuries from the accumulation of gas due to lack of ventilation, the company is clearly liable; but, if Jones was negligent in fulfilling his duties in making the breakthrough, which negligence contributed to the explosion, the company is not liable. The witnesses differed as to the shot fired by Jones, some justifying it as proper and a skillful mining, and others as negligence. This is the issue of fact which should have been sharply drawn in an instruction, and sent to the jury for its determination. Instead of that, abstract and involved statements of the law of master and servant are given that could not be prejudicial to either side or helpful to the jury. At the conclusion of one of these instructions is this: “Then the court tells you that your verdict should be for the plaintiff, if you believe from the evidence, at the time of the injuries the plaintiff was using ordinary care for his own protection.” The seventh instruction was as follows: “If you believe from the evidence that the plaintiff failed to use ordinary care for his own protection, as defined-in these instructions, you should find for the defendant.” The definition referred to is tonspicuous by its absence. Then the court correctly defined the burden of proof as to contributory negligence. Notwithstanding this insufficient submission of the real issues to the jury, the appellant cannot complain of it. In the first place, it never asked that the definition of ordinary care required of plaintiff, referred to in the seventh instruction, should be given; and, in the next place, it did not ask any instruction at all on the point which it is now contended the court-should have fully submitted to the jury. The appellant asked eleven instructions, all of which the court properly refused to give. The first was a peremptory instruction, which should not have been given. The second, third, fourth, fifth, eighth, tenth and eleventh requested instructions assume that it was per se negligence to prepare and fire the shot as Jones did, while that is a disputed question of fact. This question was submitted in general terms to the jury, and the appellant did not ask it to be better submitted, and cannot now complain that it was not.
There was no error in refusing any of the other instructions. The third was to the effect that the company owed no duty to Jones to keep the room adjoining his free of gas, and that it fulfilled its duty to him if it kept his own room and place of work free from gas. This is not the law. The fire boss and the custom of the mine required. Jones to open an aircourse into room 5, and he was as much interested in the ventilation of that room as his own.
The statute defines the amount and measure of the ventilation, and requires that so much air “shall be circulated to the face of every working place throughput the mine, so that said mines shall be free from standing gas of whatever kind.” Kirby’s Dig. § 5340. This means that the air shall be carried to the extremest point where the pick falls, and that the entire mine shall be free of gas. It is not susceptible of the narrow construction sought to be placed on it. There was no error in refusing the sixth instruction, as the ninth given by the court was to exactly the same effect. The seventh was a hypothetical statement of the defendant’s theory of the case, and was equivalent to a peremptory instruction. The ninth was harmless to either side, but was properly refused, as this court has frequently said that isolated, facts should not be singled out in instructions.
Finding no error of which the appellant can complain, the judgment is affirmed.
Mr. Justice Battre dissents.