47 Kan. 460 | Kan. | 1891
Richard Wilson, as administrator of the estate of James W. Wilson, deceased, brings this action against the Cherokee & Pittsburg Coal & Mining Company to recover $10,000 as damages for the benefit of the parents of the deceased, who are his next of kin and heirs at law, for pecuniary loss alleged to have been sustained by them through the death of James W. Wilson, which was alleged to have been caused by the negligence of the company. James W. Wilson was an employé of the company, working in one of its mines, where there was an explosipn on November 9,1888, by reason of which he was killed. The averments of the petition with reference to the negligence were that—
“The defendant knowingly and wilfully permitted inflammable gases to accumulate therein, and permitted large quantities of coal dust, impregnated with sulphur, to accumulate in the passages thereof, and permitted the same to become dry and inflammable and explosive, and so allowed the same to so remain for a long space of time; that by means and reason of the said negligence, carelessness and default of the defendant, an explosion took place in said mine, at about the hour of 5 o’clock p. m. on the 9th day of November, 1888; that said explosion was caused by the negligence of said defendant in negligently permitting the accumulation of combustible and inflammable dust in said mine, which, being communicated with by a blast of powder in the mine, caused a general explosion in the mine; and, among other casualties, caused the death of the plaintiff’s intestate, as hereinafter stated; by means and reason whereof the said James W. Wilson was wounded, mangled, bruised, and killed, all without any fault or negligence on the part of the said James W. Wilson, and while he was working in said mine under and by virtue of his said employment; that had it not been for the accumulation of said inflammable and combustible matter in said mine said explosion could not and would not have happened. Said defendant knew, or should have known, in the exercise of ordinary prudence, that the presence and accumulation of said dust was a dangerous element in said mine, but negligently failed to provide reasonable precautions against*462 danger, by sprinkling said mine or otherwise, or to provide against danger and death by the exercise of any ordinary prudence against permanent injury or death to employés and plaintiff’s intestate.”
The company answered, denying the allegations of the plaintiff below, and stating that if the deceased was killed at the time and place alleged, his death was caused and materially contributed to by his own negligence. A trial was had in April, 1891, which resulted in a verdict against the company for $5,000. The company complains of this judgment, and insists that the court erred in its rulings on the admission of testimony, and in determining the sufficiency of the evidence offered to sustain the allegations of the petition, and to uphold, the verdict that was rendered. It is also asserted that the court committed error in its charge to the jury, and in its rulings on the special questions of fact submitted to and returned by the jury.
It is shown, and not denied, that on November 9, 1888, a general explosion occurred in a mine owned and operated by the company, known as “Erontenac mine No. 2,” and that James W. Wilson and other employés engaged in the service of the company were killed in the explosion. The cause of the explosion is the principal subject of controversy in this action. The mine where the explosion occurred is a dry mine, from which bituminous coal was mined. The main hoisting-shaft, which was used for taking coal out of the mine and as a means of ingress and egress of the miners, as well as to conduct the air into the mine, was about 100 feet deep. At the bottom of the shaft was a main entry, extending east and west a distance of about 2,000 feet. The main east entry extended about 1,100 feet from the shaft, and from it were entries running north and south, which extended from about 200 to 700 feet from the main entry into the coal; and from these entries rooms or drifts were turned, running east and west into the coal. The coal was mined by blasting, and the manner of mining it was by drilling a hole into the face of the coal from two to six feet in depth. After drilling the holes, each miner
The theory and claim of the plaintiff below is, that this fine coal dust, which had settled on the walls, floor and ceilings of the mine, and pervaded the atmosphere, was impregnated with sulphur, and was highly inflammable and combustible, and* when combined with the air and the gas liberated from the coal or generated by the flame and heat, is a dangerous explosive; that this fine dust was stirred up and ignited by the concussion and flame of a blown-out shot in the third or fourth north entry, and the blast thus started was accelerated and extended by large volumes of dust burning and expanding as it swept through the entire east part of the mine, until it found relief at the mouth of the shaft, and that the coal dust and flame extended up the main shaft and more than 60 feet above the ground on the outside before the force of the explosion was exhausted.
The company contends that the explosion which occurred,
There is testimony offered, though not very satisfactory, tending to show that the coal dust found in the mine is a dangerous explosive, which largely contributed to the disaster that occurred in the mine on November 9, 1888; and further, that the dangerous character of the dust may be destroyed by the sprinkling of the mine, and that those in control of the mine were aware of the dangerous character of the dust, and that an explosion could be prevented by proper sprinkling, which had been occasionally done, but not for some time previous to the explosion.
The company undertook to offer the testimony of Williams, Allen and Braidwood in this case, which had been given in the trial of Limb v. Coal & Mining Co., tried at a former term of
For these errors the judgment of the district court must be reversed, and the cause remanded for a new trial.