66 W. Va. 278 | W. Va. | 1909
Lead Opinion
The plaintiff below recovered a verdict and judgment against defendant for $3500, for the death of G. T. Lipscomb, a coal miner, the result of being burned by gas generated in defendant’s mine and ignited from the lamp of another miner employed in another part of the mine.
The negligence charged in the four counts of the declaration is, that defendant wrongfully and negligently permitted fire damp, gases, vapor, and foul air to accumulate in the main and side entries; employed and retained incompetent and inexperienced agents and servants; failed to furnish safety lamps; employed and used a poor, defective and insufficient apparatus, called a fan, for driving air into said entries; failed to employ a competent mine boss and fire boss, and to keep at said mine safety lamp or lamps, as required by law, and to have the mine examined and notice given employees of the accumulation and existence therein of fire damp and dangerous gases, and to provide ample means of ventilation; failed to cause air to be circulated through the said entries, headings and working places so as to dilute, render harmless and carry off fire damp, gases and vapors, but permitted the same to be ignited and to explode with great force and violence about deceased while employed in said mine, in the discharge of his duties, and whereby he was bruised, wounded, suffocated and injured, so much that he then and there died.
The evidence shows that on the day deceased sustained the injuries complained of he had been employed in the defendant’s mine, in company with another miner, and that after having blown down an amount of coal the two left the mine, intending to return during the night shift and load their coal. On the way out they met the mine boss, who says he warned them of the presence of gas in the mine, and that the last break-through next to the heading where they had been at work was not yet completed, and that they had better not go into the mine until it should be completed; The practice was to make breakthroughs every sixty feet, as the work progressed. The miner
The plaintiff offered no other evidence showing any alleged negligence of the defendant, or of the mine boss or the fire boss, unless the fact that the last break-through had not been completed’or brattice not used, as to which there is no specific allegation, be evidence of the alleged failure to provide ample means of ventilation. No evidence on either side showed negligence in any other particular.' And contrary to the fact alleged in the declaration the evidence showed employment and retention of a competent mine boss and fire boss, and that the means of ventilation, required by the statute, unless the incompleted breakthrough and failure to use brattice, should be regarded a part of such means, was ample for the purposes of the mine.
Unless this case can be differentiated from Williams v. Thacker Coal & Coke Co., 44 W. Va. 599; McMillan v. Coal Co., 61 W. Va. 531; and Squilache v. Coal & Coke Co., 64 W. Va. 337, they must control our decision. The only point of distinction attempted is that as the same section, section 409, Code 1906, which imposes upon the operator or agent of a coal mine the duty to provide and maintain ample means of ventilation, also requires that “as the working places shall advance, break-throughs for air shall be made every one hundred feet in the pillars, or brattice shall be used,” the operator of the mine is bound to the performance of the latter duty as well as the former, and is not excused from liability on account of the negligent performance of the latter duty by the mine boss, because, by section 410, the performance of that duty is specifically imposed on him. It is argued that the duty respecting break-throughs is a double duty, imposed upon the operator by the first section as well as the mine boss by the latter section, and that the
In consonance, therefore, with our previous decisions, we must hold the mine boss and fire boss fellow servants with the miner in the performance of the duties imposed upon them respecting the ventilation of the mine, including therein the duty of the mine boss to make break-throughs, and to use brattices for such ventilation.
In considering this case our attention has been called to the fact that the legislature of Illinois, in 1905, in re-enacting the mining laws of that state, made provisions therein similar to those in Pennsylvania and in this State, and that the supreme court of Illinois, in Henrietta Coal Co. v. Martin, 321 Ill. 460, refused to follow our decisions and the decisions in Pennsylvania, in construing the Illinois statute. We have considered those cases as well as the later cases of the same court, together with
These conclusions render it unnecessary for us to consider specifically any other questions presented and argued here. They are all answered by our conclusions on the main question.
We are, therefore, of opinion to reverse the judgment below, award the defendant a new trial, and to remand the case to the circuit court for that purpose.
Reversed and Remanded.
Dissenting Opinion
(dissenting):
I am unable to agree with my associates in so much of the foregoing opinion as holds that the mining boss is not a vice-principal, or agent, of the operator in so far as the question relates to the performance of those duties which are expressly enjoined by statute upon the operator, as well as upon the mining boss. Section 409, Code 1906, makes it the dut}r of “the operator or agent of every coal mine” * * * * to provide and maintain “ample means of ventilation,” and specifies what the means of ventilation shall he, one of which is break-throughs in the wall, or brattice. This, in my opinion, is a non-assignable duty; and notwithstanding the statute, section 410, enjoins the performance of the same duty upon the mining boss, I do not think the legislature thereby intended that the operator should be relieved from performing it also, or from seeing that it is done. If he chooses to entrust the performance of this joint duty wholly to the mining boss, he thereby makes him his agent for that purpose. I do not deny that, in the performance of those duties enjoined solely upon the mining boss, he is properly regarded as a fellow servant with the miner. B.ut in relation
Mr. Thompson, in his work on Negligence, Yol. 4, section 4206, in commenting on such statutes as those in Pennsylvania, Indiana and West Virginia, which require the operator to employ a mining boss, says: “The effect of such a statute is to prescribe the duties owing by the master, and the fact that the mine boss is required to be employed to perform those duties does not relieve the master from the obligation of performing them or of seeing that they are performed.”
I have carefully considered our own cases on the point. In Williams v. Thacker Coal & Coke Co., 44 W. Va. 599, this Court laid down the proposition that, when the operator has employed a competent mining boss, “he has discharged his duty to his employes in relation to those duties which the statute prescribes shall be performed by such mining boss, and the operator or agent is not liable for injuries arising from the negligence of the mine boss.” I think this proposition is too broad to be sound in principle. • It ought to be qualified by
In McMillan v. Coal Co., 61 W. Va. 531, plaintiff was injured by the explosion of dynamite caps which he had been directed by the mine boss to go to a box and get and carry to a fellow workman. The mining boss was there properly held to be a fellow servant of the man injured.
I think the rule was again stated too broadly in the 4th point of the syllabus of the case of Squilache v. Coal & Coke Co., 64 W. Va. 337 (62 S. E. 446). Squilache was burned by the explosion of gas in the mine, and claimed that the presence of the gas was due to the want of proper ventilation. But just what particular act of negligence on the part of the operator plaintiff complained of does not appear. It would seem from a reading of the case that Squilache claimed that the presence of gas in dangerous quantities was sufficient of itself to show a want of proper ventilation, and the incompetency of the fire boss. It was further claimed that the stoppage of the large fan on the outside of the mine, on the day previous to the accident, was responsible for the presence of the gas, and that -these facts established negligence on the part of the operator. But
All of the above cases are clearly distinguishable from the present one, and should not control it. In neither one of them was the question presented that is directly involved in the decision of this case, which is, did the legislature intend to relieve the operator from liability for failure to provide and maintain certain specified means of ventilation, by making it also the duty of the mining boss to see that such means of ventilation are used? I think clearly not; and if the operator intrusts the performance of those double duties solely to the mining boss he thereby makes him, for that purpose, his agent or vice-principal.
Section 410, which provides for the employment of a mining boss and defines his duties, is very significant in the language used in the beginning of the section. After defining the duties of the operator in section 409, section 410 begins: “In order
The same interpretation was -given to a similar statute by the supreme court of Illinois, in Henrietta Coal Co. v. Martin, 221 Ill. 460.
Our. statute was correctly interpreted by this Court, I think, in the case of Graham v. Coal & Coke Co., 38 W. Va. 273. That case has not been expressly overruled by any subsequent decision, and I am unable to see why the law as therein expressed is not applicable to the present case. Point 1 of the syllabus states the law as follows: “It is the duty of the operator of every coal mine to provide ample means of ventilation, and to cause air to be circulated through the headings and working places, so as to dilute, render harmless and carry off dangerous and noxious gases” etc. The statute, as it then was, required
It does seem to me that any other construction of the statute than what I seek to give it would relieve the operator of liability from almost all acts of negligence in the ventilation and operation of the mine; and would serve to abolish, almost entirely, the doctrine which is as old as the common law itself, and which is, with few exceptions, recognized in every jurisdiction where the English common law prevails, requiring the master to furnish a reasonably safe place fox his servant to work, and would also tend to encourage negligence and indifference on the part of the operator concerning the health and safety of his employes. Our statute demands no greater qualification for a mining boss than that he shall be a citizen of the state-and shall have had three years experience in a coal mine. Can it be possible that the legislature meant that, if an operator should employ a person of such limited qualifications,-and should turn over to him the operation and ventilation of his mine, he should thereby be relieved from all liability on account of injuries resulting from his negligence in failing to provide and maintain the means of ventilation expressly enjoined by the statute, however gross? I cannot think so. I do not think the duties imposed by statute upon the operator are at all burdensome, or difficult to perform; but, on the contrary, I think they are simple and reasonable, and the operator should be held to a strict compliance with them.
I have thus expressed my views at some length, because I am led to believe, from a careful reading of our own decisions, that the point which I have discussed has never fairly arisen in any other case in this Court, and that it is still an open one.