121 Ky. 724 | Ky. Ct. App. | 1906
Opinion by
Reversing.
Gris Andricus, a coal miner, Was overcome by foul air and gases in appellee’s mine, and died therefrom November, 2, 1902. This suit is against the mine owner to recover damages to his estate,'on account of his death, charging that the mine owner
In addition to the testimony of the witnesses, appellant offered certified copies of notices given by the State mine inspector to appellee on June 24,1902, and on October 4, 1902, condemning the ventilation of the mine, and particularly calling attention to the condition of the second left. The State mine inspector required, by these notices, that the owners remedy the defects in ventilation as therein pointed out and specified. The court rejected these copies. Nothing was done, so far as the record shows, to comply with the State mine inspector’s requirements in the matter. It was admitted that Andricus was killed by foul gases in the mine. The defense was that the condition was not because of appellee’s negligence, but was brought about by Andricus’ own negligence in going back to work too soon after shooting the coal, and before the gas caused by the shot could be dissipated by ventilation or otherwise. Appellee’s mine foreman testified as a witness for appellant. He, too, had been employed at that, mine only that day — the day of the death of the two Greeks. He had not had time to learn, or had not learned, of the true" condition of the mine, and said nothing whatever to the decedent and his companion about its condition. The next day the foreman did inspect it at that point, arid testified that the ventilation was entirely insufficient and the air was bad. Upon this evidence, the circuit court granted a motion for nonsuit, and peremptorily instructed the jury to find a verdict for appellee.
Perhaps the objection went to the very root of the matter, and was based upon the assumption that the ¡State Mine Inspector’s examination and report could mot of itself establish the fact; that the report or notice was, indeed, only hearsay evidence, and not receivable in-an action of one injured by the condition found by the report as against the mine owner; or that, at least, as might be assumed from a reading •of the statute, it was alone a police regulation, a hreach of which was indictable, and on the trial of which, by the terms of the statute, the inspector’s
But the statute goes further, and provides a punishment for those who violate it. The main object of the punishment is, of course, to coerce its observance of the regulation by the person punished and by others witnessing his example. But all preventive statutes do not entirely prevent the mischief at which they are aimed. This is anticipated in the pro
Besides, a statute of this State provides: “A person injured by the violation of any statute may re
The final contention is that there was not proof certain that decedent came to his death from the cause charged, and for aught that the record discloses he may have died from his own negligence or other undisclosed cause. The answer expressly admits that decedent was overcome by gas in the mine at the time and place charged and while in appellee’s service. But it pleads that it was his own negligence, instead of appellee’s, that caused it. On this plea of contributory negligence, if it be deemed such, there was no proof. The admission, coupled ,with the proven facts, and particularly in connection with the mine inspector’s notices, are enough to have supported a verdict for appellant on the specific charge sued on.
The court is of opinion that 'the circuit court erred in excluding the copies of the mine inspector’s notices, as well as erred further in giving the peremptory instruction in the case.
Wherefore, the judgment is reversed, and the cause remanded for a new trial under proceedings consistent herewith.