14 Wash. 331 | Wash. | 1896
Lead Opinion
The opinion of the court was delivered by
This, action was brought to recover damages for the death of John T. Pugh, which occurred in an accident at the Franklin mine, owned by the Oregon Improvement Company, on the 24th of August, 1894, by which accident Pugh and thirty-six other miners lost their lives. It is alleged that the defendants negligently allowed a fire to break out in the mine and afterwards negligently shut off the ventilation, whereby the deceased was suffocated. A verdict
There was nothing to show any negligence upon the part of the defendants, so far as the origin of the fire was concerned, nor did the plaintiffs rely much upon such a claim. Their main contention was based upon the alleged negligence of stopping the fan used for ventilating the mine. Said mine consists of seven levels, varying from 300 to 350 feet apart. The main slope, starting from the top, reaches down six levels, and another shaft connects the sixth and seventh levels. The mine, at the time, was provided with four separate shafts; the main slope, by which cars
On the 24th of August coal was being mined from the fifth, six and seventh levels, nearly all of the work being done on the sixth level and north from the main slope. This part of the workings was called the sixth level north, or sixth north. There had been a fire on the fifth level near the main slope, and heavy partitions of masonry had been put across completely cutting it off from the main slope, while back beyond the fire other partitions had been erected, thus enclosing the fire between masonry walls, while still back beyond on the fifth level a connection had been made with the sixth level, by means of which coal was mined on the fifth level and put down through chutes to the sixth level. This portion of the mine was ventilated by means of the fan at the top of the air course. The fan was of the variety known as suction, and drew the air up through the air course, the current going down the main slope, then, being deflected off on the sixth level along the gangway, went as far as the gangway was driven, then it was turned up into the rooms where the men were working, down to the return air course entirely through the sixth level, up into the fifth level, down to the sixth level again to the return air course, and then out of the air course by way of the fan, which was situated on a hill about 350 feet above the
The main slope, as well as the air course, are not driven in the coal vein. On account of the danger from fire, and for other reasons, they are in a vein about 153 feet from the coal vein in what is known as the dirt vein. Both the dirt vein and the coal vein were inclined at an angle of from 30 to 45 degrees. At the foot of the air course a connection was made with the sixth level by driving a tunnel from the dirt vein to the coal vein through the 153 feet of intervening strata, consisting mostly of rock, and this tunnel was known as the rock tunnel; and a door was constructed where it joined the coal vein which was known as the rock tunnel door. The method of mining the coal is as follows: A gangway about eight feet high and eight feet wide is driven along on the coal vein, with a gradual ascent from the main slope to permit the drainage of water. After the gangway is driven back a suitable distance from the main slope,
Between 11:20 a. m. and 11:25 on said 24th of August, the fire was discovered in this chute about halfway between the gangway and the cross-cut. It appears that said chute, was dry and free from slack or debris, and it is claimed that it was impossible for the fire to have originated by spontaneous combustion. It is not known how it did originate. One of the boys engaged in driving mules and hauling coal along the gangway first discovered it, and immediately notified John Schneider thereof. Schneider thereupon instructed this boy and three or four other boys working
Pugh was then working in breast 82, with one Israel Stevens, on the north sixth level, 1,000 feet from where the fire occurred. The distance from chute 62 to breast 49, where the rock tunnel door is located, is 650 feet, and from there to the foot of the main slope 1,700 feet. Pugh and Stevens were notified of the fire and ordered to come out between 11:25 and 11:30. It would have taken them between five and six minutes to travel from breast 82 to a point south of the rock tunnel door, which was a place of perfect safety, and about seven or eight minutes to travel from the rock tunnel door to the foot of the main slope, where there would have been no possible danger. But Pugh, instead of going out and saving his life as his partner, Stevens, did, remained with a large number of other men. There is a good deal of testimony to show that they stopped near the fire, watching it, and there is no question but that nearly all of those lost stopped at that point after starting to leave the mine, and remained there for some considerable time before heeding the alarm given and endeavoring to get out of the mine or to a place of absolute safety. It is one of the disputed facts in the ease, however, as to whether Pugh stopped there or elsewhere, but-we do not regard it as very material, for the undisputed facts show that he had ample time to have gotten out.
After Schneider was informed of the fire he went as far north as breast 75 and assisted the boys in notifying the miners of it and to leave the mine.- He then returned to the fire and went out at the foot of the main slope, a distance of 1,700 feet, then returned to the fire and afterwards made his escape in safety.
Prior to the shutting down of the fan it appears that the men standing around the fire, and who had been standing there for possibly half an hour, began to call out to open the rock tunnel door. In response to this call, John Johns, one of the gas testers in the mine, went to said door, a distance of about 700 feet from the fire, and opened it. While Johns was opening the door, the men again called out, “ open the rock tunnel door,” and in response to this call Schneider also started to open it and he met Johns returning therefrom, and upon' informing him that he was going to open the door Johns stated that he had already opened it. Schneider and Johns remained for a moment or two conversing, when they discovered smoke oozing out of the brattice or partition constructed at chute 54. Johns then stated to Schneider that he thought he had made a mistake in opening the rock tunnel door, and for him to go and close it. Schneider thereupon undertook to close it, and when opposite it and in an endeavor to close it, he ran into a bank of smoke which extinguished his light and made it impossible for him to find or close the door. Schneider then made his way out until he saw a dim light ahead of him to the south, when, being overcome by the smoke, he fell down and cried for help. John Morgan, who was gas tester on the seventh level, and who was traveling in the direction of the fire, heard Schneider’s cries and rushed to his rescue. He got Schneider on his feet and sent him on top to notify them to start the fan, which was done and was there
Taking it'as an established fact that’the operation of the fan was stopped by Ramsey, the assistant superintendent, and that this would sustain the charge of negligence against the defendants, we think that the proofs show that the deceased was clearly guilty of gross contributory negligence. The men inside could not certainly know that the men outside knew at what point in the mine the fire was located. If the fire had been located at a point south of the rock tunnel door, the only possible means of escape for the men who-unnecessarily loitered at the fire would have been up-through the rock tunnel door and the manway in the air course or fan shaft above described, as there were no exits north of the rock tunnel door. This the men at the fan, the miners and everyone else working at the mine well knew. With the fire located south of the rock tunnel door, the shutting down of the fan would-have reversed the air current, and instead of permitting the smoke to go north, would have driven it south towards the foot of the main slope and thereby permitted the men to escape out through the fan-shaft, while its continuous operation, had the fire been located south of the rock tunnel door, would have-meant certain death, in that it would have drawn the-flames and smoke in upon the men and shut off the-only exit from the mine.
It is established beyond any doubt that the company wanted the men to come out of the mine and notified them to leave it. It likewise appears that-they had ample time to get out. A number of miners who were working farther north in the mine than the deceased made their escape without any difficulty. But Pugh did not heed the warning given and chose
Reversed.
Rehearing
ON PETITION FOR RE-HEARING.
A petition for a re-hearing has been filed herein, calling attention to the fact that the opinion mentions some matters which did not appear until after th e motion for a non-suit was made. Th ese related mainly to a description of the premises and to circumstances connected with the opening of the rock tunnel door. None of said matters influenced the finding of the court from the plaintiffs’ case, that Pugh was guilty of contributory negligence. He was an able-bodied man in full possession of his faculties. It is certain that he was notified to leave and that he started to leave the mine with'Stevens. Stevens kept on and got out without difficulty. He passed a dozen or more men who were loitering at the fire. It did not appear clearly whether Pugh stopped there or elsewhere, but that was immaterial. Two other men made their escape after Stevens made his. The court was then and is now of the opinion that the plaintiffs’ testimony showed that Pugh had ample- time within which to have left the mine, and that in not leaving he assumed the risk connected therewith, and the defendants were entitled to a non-suit, conceding that the charge of negligence against them had been established.