132 Ky. 32 | Ky. Ct. App. | 1909
Lead Opinion
Opinion op the Court by
Reversing.
James Boyd Edwards was a miner, working in the mine of the defendant, J. W. Lam, and on November 21,1907, be was fatally burned by an explosion wbicbi
Section 2731, Ky. Stats., 1909, among other things, provides: “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 break-throughs or air-ways except those last made near the working-face of the mine, shall be closed up and made air-tight by brattice, trap-doors or otherwise, so that the currents of air in circulation in the mine may sweep to the interior of the excavations where the persons employed in the mine are at work; and all mines governed by this statute shall be provided with artificial means of producing ventilation, such as suction or forcing fans, exhaust steam, furnaces, or other contrivances, of such capacity and power as to produce and maintain an abundant supply of air.” The plaintiffs introduced proof on the trial to the effect that the explosion occurred about 4:30
“ (1) The.oourt instructs the jury that if they shall believe from the evidence that on the occasion when plaintiff’s intestate was injured the defendant, Lam, caused or permitted the working places in said mine to be driven more than 60 feet from a break-through or air-way, or that the defendant, Lam, on said occasion failed to provide a furnace or other contrivance of such capacity and power as to produce and maintain an abundant supply of air in said mine, and if the jury shall further believe from the evidence that an explosion was caused by the defendant’s aforesaid acts or omission, if any, or by any of them, and if the jury shall further believe from, the evidence that the said explosion was the direct and natural result of the aforesaid acts or omissions or any of them, if the defendant did or failed to do any of the things above set out, and if the jury shall further believe from the evidence that the plaintiff’s intestate was burned in said explosion and his death thereby caused, then, and in that event, the jury should find for the plaintiff such compensatory damages as were thereby caused to decedent’s estate, not exceeding $25,000, the amount, claimed. And unless the jury shall believe as set out in this instruction, they should find for the defendant.
“(2) If the jury shall believe from the evidence that the explosion in which the deceased was burned was caused solely by the negligent manner, if any, in which his co-laborers or any of them fired their shots in said mine or mined coal therein on said occasion, then, and in that event, the jury should find for the defendant. ’ ’
Instruction No. 1 is defective, in that it is not as broad as the statute, and does,not show that it was
“(1) It was the defendant’s duty to provide and maintain for the mine an amount of ventilation of not less than 100 cubic feet of air per minute per person employed therein, circulated and distributed throughout the mine in such a manner as to dilute and render harmless and expel the poisonous and noxious gases from- each working place in it. No working-place should be driven more than 60 feet in advance of a break-through or an air-wav. All break-throughs or air-ways except those last made near the working-face of the mine should.be closed up and made airtight by brattice or otherwise, so that the currents of*40 air in circulation in the mine may sweep to the interior of the excavations where the persons employed in the mine are at work; and the mine should be provided with artificial means of producing ventilation such as. a forcing fan, furnace, or other contrivance of such capacity and power as to produce and maintain an abundant supply of air. Now, if the jury believe from, the evidence that the defendant, Lam, failed to perform these duties or any of them, and by reason thereof and as the natural and proximate result of such failure an explosion occurred in said mine, and thereby the plaintiff’s intestate was burned, and his death, was thereby caused, they should find for the plaintiff.
“(2) If the defendant or the mine boss working under him failed to use ordinary care in regulating-the time and manner in which the miners should fire their shots, and negligently allowed them to fire their shots in such a way as to cause the explosion, when,, by the exercise of ordinary care on the part of the defendant or the mine boss, this might have been avoided, and but for this the injury would not have-occurred, the jury should find for the plaintiff.
• ‘ (3) If the explosion was caused solely by the negligent manner in which the miners or any of them fired their shots on said occasion, the jury should find for the defendant; but, if there was negligence o„n the part, of the defendant as set out in No. 1 or No. 2, and. also negligence on the part of the miners as set out above, the defendant is responsible if the explosion would' not have occurred but for the negligence on his part.
“ (4) Unless there was negligence on the part of the -defendant as set out in No. 1 or No. 2, and by reason thereof and as the natural and direct result*41 of such negligence the explosion occurred, the jury-should find for the defendant. ’ ’
The court allowed the defendant to prove by his mine boss or superintendent that the day after the accident he went through the mine, - and the ventilation was good. This proof should not have been admitted. The necessary effect of the explosion was to drive out of the mine the foul air and gas that was in it; for, as the flame and smoke rushed out of the stack, the air from the outside rushed in and took its place. The air the next morning was therefore in a radically different condition from what it was the evening before, and the effectiveness of the furnace would depend upon the amount of fire' that was in it. The proof for the plaintiff showed that there was little or no fire in.the furnace the evening before, and by having a good fire the next morning conditions might have been different. The condition of the air in the mine the next morning would depend upon not only these thing's, but upon so many other conditions that the evidence is too uncertain to1 be proper for the consideration of the jury. The defendant may show, not only what the condition of the ventilation was at the time of the explosion, but what it had been previous to the explosion under similar conditions. But what it was after the explosion was a matter so largely in the control of the defendant that to admit the evidence would be to allow him to make evidence for himself.
We see no other error in the record; but for the reasons given the judgment is reversed, and oause remanded for a new trial.
Rehearing
May, 1909.
In the transcript of the evidence in this case it appears that a contract between appellee and the local organization of the United! Mine Workers of America at the place where appellee’s mine is located was admitted to the jury in evidence.- But the transcript does not contain this contract. In that way, the import of that agreement escaped attracting the notice that its importance as bearing on the case might justify. It is said that the contract was to this effect: The miners in appellee’s service, all of whom were members of the local organization or lodge, were to employ a man to “shoot the mines;” that no one was to be allowed to “shoot out of turn;” that, in short, the control of that part of the operations in the mine relative to the time and manner of shooting down the coal was to be exclusively within the hands of the miners themselves. Conceded that the contract was of such import, we think it materially affects the law of the case-. Obviously there is not a liability on the mine owner as to negligence in failing to control the time and manner of shooting in the mines when, by an agreement between the mine owner on the one side and all the miners on the other, the former had not the duty or right to control the matter at all, but it was controlled by the men themselves. The duty of the mine owner, independent of statutory regulation, and that primary- duty to furnish a reasonably safe place in which to work, and tools with which to work, may vary according to the contract between him and his laborers. If the latter do not choose to rely upon the former’s judgment and skill in certain features of
Appellant ?s theory of the cause of the explosion was that foul air or gas was allowed to accumulate in the rooms and passages of the mine for want of proper ventilation, which ignited when the shots were fired off. Appellee’s contention is that’the shots were fired in such rapid succession that the system of ventilation could not, and indeed no system could, have carried off the gases generated and released and dust and heat created by the shots; that these accumulating in the passages, being forced almost simultaneously from the various rooms by the shots fired therein, overtaxed the ventilating system, and caused what is termed a “powder explosion.” There was evidence to support each theory, and each should have been submitted to the jury. The statute regulating ventilation of mines does not contemplate a system of ventilation .that will keep the mines free from negligent explosions of powder by the men working in an unskillful manner, but that, under the normal conditions in the mine, the draft must be such as will afford the minimum of pure air stated in the statute. If the miners violate the rules of proper mining so that the means provided under the statute for sufficient ventilation in proper mining are ineffectual, it certainly
Subject to this extension of the opinion in this case, appellee’s petition for rehearing is overruled.
Rehearing
On Petition for Rehearing,
Opinion by
We are unable to see that the construction of the statute we have followed, violates any right of the appellant under the Constitution of the United States or any amendment thereto. The right of appeal to this court is the creature of- the statute, and the Legislature may annex any condition it sees fit to it. We are also of opinion that a construction of the statute on a mere matter of procedure which has so long been acquiesced in, should not now be departed from. Petition overruled.