132 Ky. 555 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
The appellant, G. W. Ourvin, was fee owner of a coal mine in Laurel county, Ky., which, during the fall of 1905, he was operating. About that time he entered into an arrangement with Tilf ord Cornelius1 by which he leased to' fee latter a part of the mine. Under the terms of this lease Cornelius was to mine the coal within the area set out in the contract, and deliver .it on mining cars in the main entry at which point Ourvin, by his. employe's, was to take charge of it, haul it to the tipple, and pay to Cornelius 72 cents per ton, mine run. Cornelius was to hire his own men and operate his part of the mine free from the control of Ourvin, except that fee owner reserved a
The appellee, Ránee Grimes, was in the employ of Cornelius' as a miner. While making what is called a “shot,” by which the coal is knocked down by the explosion of gunpowder, there occurred what is called by the witnesses a ‘ ‘dust explosion, ’ ’ by which the whole mine around about where Grimes was at work was filled with flame, very much the-same as if the mine had been filled with inflammable gas, which
Without going into the evidence minutely, it is sufficient to say that there was an abundance of testi • mony tending to establish the theory of appellee that his injuries were caused by the dust explosion, and that this was the result of the mine having become dry owing to defective ventilation. On the part of appellant it was contended that Cornelius was an independent contractor, and, Grime's being his employe, appellant owed him no duty, except, perhaps, to keep the fire going in the furnace; that under the contract between appellant and Cornelius the latter was to do- the bratticing, and, if the bad ventilation was due to the failure of Cornelius to properly attend to the bratticing, Grimes must look to his immediate employer, and not to the owner of the mine, for remuneration! for his injuries. For all the purposes of this case, appellant’s theory as to Cornelius being an independent contractor may be conceded to be true; but
Section 2731, Ky. St., relating to the. ventilation of mines in this state', is in part as follows: “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 breakthroughs of airways, except those last made near the working face of the mine, shall be closed up and made air-tight by brattice, trapdoors or otherwise, so that the currents of air in circulation in the mine may
The evidence shows, without contradiction, that Curvin was in a general sense the operator of the whole mine in which the accident involved herein occurred. He could not, therefore, escape the duty imposed by the statute to see that this mine was ventilated in the manner pointed out, and he could not escape the responsibility for his failure so to do by saying that.he had contracted with Cornelius to attend to the necessary bratticing, and that the latter had failed in his duty in regard to it. The men who were working in this mine, whether for Curvin or for Cornelius, saw that ventilation was in the hands and under the operation of Curvin, and they had a right to rely upon his faithful compliance with all the wise provisions of the statute enacted for their safety. Curvin could not, by a verbal contract locked up in the secret bosoms of the parties to it, shift the responsibility for the proper ventilation of the mine to-other shoulders. Undoubtedly, if appellee’s injuries had resulted from negligence on the part of Cornelius to perform some duty owed by him to his employes, Curvin would not have been liable. But we have a different case before us. Here-the mine was laid out as a whole, and had been operated as such. Appellant, by a contract with Cornelius, gave him a certain part of the mine in which to operate as an independent contractor so far as mining the coal was con
This was the view of the learned trial judge, and in his instructions he told the jury that if the injury which plaintiff received was caused by the failure of Curvin to properly ventilate the mine he was responsible, but if the injury received by appellee was caused in any other manner they should find for the defendant; and he especially instructed them, that if the appellee’s injury .was the result of an unnecessary and unusual charge of powder used in the course of mining by the plaintiff, or the result of an explosion of powder carelessly left in the entries of the mine by the plaintiff or the other miners, and exploded by the firing of shots in the coal, and not the result of an explosion of dangerous and inflammable gases which had been permitted and allowed to accumulate in the mine by the defendant, the law was for the defendant. It seems to us that the instructions given by the court were fully as favorable to defendant as the law justified, and that he has no just reason to complain on this score. There was nothing in the evidence to justify the court to instruct the jury that if the defendant knew of the danger existing in the mine, and, so knowing, remained at work therein, he could not recover. The evidence affirmatively shows that Grimes did not know of the danger. It is true, some weeks before the accident by which he was hurt, there had been some sort of explosion in the mine, which frightened Grimes, and he imme
We do not mean by what we have said in this case to intimate that we adopt unqualifiedly the theory of appellee. All that we can say is that there was evidence to sustain it; and while it would be easy to believe that the explosion in question was the result of an ill-judged shot, igniting loose powder which had been carelessly scattered in the mine, still both theories were fairly submitted to the jury, and they found for the appellee.
We do not think the verdict is excessive. This was a matter of which the jury were properly the judges; and, if we were less certain that the verdict was reasonable than we now feel, we would not consider ourselves authorized to reverse the judgment alone because of the amount awarded appellee.
Judgment affirmed1.
Petition for rehearing by appellant overruled.