160 Ky. 730 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
This is an appeal from a judgment of the Whitley Circuit Court, entered upon a verdict awarding appellee $300.00 damages against the appellant for injuries to his health sustained while at work as a miner in the latter’s employ, from noxious and poisonous gases in its coal mine, which it had, as alleged, negligently allowed to accumulate and exist therein, in violation of the requirements of section 2731, Kentucky Statutes, which 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 manner as to dilute, render harmless, and expel the poisonous and noxious gasses 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 air-way; and all break-throughs or air-ways, except those last made near the working face
It appears from the evidence that pure or fresh air is supplied to appellant’s mine by a mechanical contrivance known as a forcing fan, which, by a process of suction, withdraws the impure air from the air courses in the mine and causes the vacuum thus created to immediately fill by the pure air entering the mine at the main entry, from which it goes into the various entries where the employes are at work; brattices or trapdoors and curtains being maintained at certain openings to prevent the escape of the fresh air from the passage through which it is conveyed to the places of work.
It is a requirement of the statute that every person working in a mine shall have at least one hundred cubic feet of fresh air per minute, and experience has demonstrated that this quantity of fresh air in a mine entry will not travel more than sixty feet in a horizontal direction without artificial assistance. According to the appellee’s evidence he was for several days at work in room No. 10, on what is known as the Maple entry, and at a distance of something like 300 feet ahead of the fresh air, or 240 feet beyond the standard of sixty feet fixed by the statute. It further appears from the evidence that brattices which should have been maintained for forcing the air to where appellee was at work were down and not maintained, and that curtains in places
The conditions described produce either “black damp” or “white damp.” Black damp is commonly known as carbonic acid gas, or dead air, with the properties of oxygen exhausted, which causes suffocation by excluding oxygen from the lungs. White damp, or carbon monoxide, has the effect to destroy the hemaglobin of the red corpuscles, or the oxygen-carrying property of the blood, which produces a weakening of the physical and mental powers and often results in death.
Appellant does not complain of the instructions that were given by the court, but asks a reversal upon the-grounds that the trial court erred in refusing a peremptory instruction directing a verdict in its behalf; and that the verdict is flagrantly against the evidence. The first complaint can not prevail, because three witnesses besides the appellant testified as did he with reference to the presence of the noxious gases in his place of work, and the absence of the brattices and curtains which, if in use, would have prevented them. It is true a greater number of witnesses introduced by appellant testified to the contrary, but this contrariety of evidence did not authorize the peremptory instruction asked, and the giving of such instruction would have constituted reversible error. A verdict will not be set aside for failure of the trial court to give a peremptory instruction, if there was any evidence authorizing the submission of the case to the jury.
Nor do we find it proper to sustain appellant’s second ground for a reversal. “The fact that the evidence is conflicting or that this court would have made a different finding on the facts, or that, in its opinion, the verdict is against the weight of the evidence, furnishes no cause for setting it aside; nothing short of its being clearly and palpably against the evidence will give the appellate court authority to disturb it on this ground.” L. & I. R. Co. v. Roemmele, 157 Ky., 84; Emp. C. & M. v. McIntosh, 82 Ky., 334. It is not true, as contended by
The questions here involved, resting upon a similar state of facts, have recently been considered by us in Log. Mt. Coal Co. v. Crunkleton, 160 Ky., 202, and we there affirmed a similar recovery, holding that there is no assumption of risk by the laborer where the master neglects, as was done in that case and this, a statutory duty; the reason for the rule being that the risks assumed by the miner are only such as arise after the mine operator has discharged his statutory duty.
It follows from what has been said that the judgment of the circuit court should be and it is affirmed.