64 W. Va. 337 | W. Va. | 1908
The plaintiff sued for injuries sustained in the coal mine of the defendant. The declaration, in three counts, the demurrer to which was overruled, after averring defendant’s ownership of the mine, servantcy of plaintiff as a miner therein, and alleged duties of the defendant with respect to the accumulation of fire damp, gases, fumes and vapors, charges, by way of assigning breach thereof, in the first count, that it negligently and knowingly permitted to accumulate in said mine where plaintiff was employed, without knowledge thereof on his part, fire damp, fumes, gases and vapors, which, becoming ignited, exploded with great power and violence, and burned with great heat in and about where plaintiff was engaged in the discharge of his duties; in the second count, that it negligently failed to employ a competent fire-boss, to keep at said mine, safety lamps, to have said
The principal ground of demurrer relied on is that the duties directly or impliedly alleged, failure to perform which it is charged resulted in the injuries complained of, are those which the statute, sections 409 and 410, chapter 15H, Code 1096, imposed upon the mine-boss or fire-boss, fellow-servants of the
Another preliminary question presented here, but apparently not seriously relied on by the defendant, relates to the rejection of two special pleas tendered, challenging the right of the plaintiff, a citizen and subject of the Kingdom of Italy, to sue in the courts of this state. ,. These pleas were properly rejected. An alien, not an enemy, may take and hold, by inheritance or purchase, real estate within this state. Such right is written in our Constitution and statute law. Const., section 5, Art. II; Code 1906, sections 3018, 3019. And the general rule is that he may maintain suits in the proper courts to vindicate his rights and redress his wrongs, including actions for personal injuries. 2 Kent. Comm., section 62; 2 Cyc. 107 and notes; Succession of Rixner, (La.), 32 L. R. A. 177; 1 Bouv. L. Dict. 130.
There was no attempt to support by proof the plaintiff’s case except by evidence of the presence and explosion of gas in the mine, some evidence of the ignorance of the fire-boss in the use of the anemometer, and that the large fan on the outside of the mine was shut down for a part of the day previous to the accident, when the mine was not being operated, without leave of the proper authority. It is claimed also that the presence in the mine of gas in dangerous quantities was evidence of want of capacity of the means of ventilation. There was, however, positive and uncontradicted evidence of the experience of the fire-boss, and of his skill and ability to detect gas in-dangerous quantities by the use of a safety lamp, and that the means of ventilation were ample and had always before produced an abundant supply of air in the mine. The view we take of the case renders it unnecessary to refer to the evidence except in this general way. The plaintiff belovr
The defense to the action in the court below, as it is here, was, first, that the injuries sustained were due to a powder explosion, or a blow-out shot, in room number 27, where the plaintiff was when he received his injuries; second, that, although the injuries sustained may have been the result of a gas explosion, the defendant, having provided and maintained ample means ef ventilation and employed a competent mine-boss and fire-boss, as required by law, discharged its whole duty to the plaintiff, any negligence being that of the mine-boss or fire-boss employed, fellow servants of plaintiff, and for which defendant is not liable. There was little evidence to support the first defense, except the presence in the room, after the explosion, of an exploded powder can, and that like serious injuries were not sustained by others in as close proximity as the plaintiff to the place where the gas was ignited. There is positive evidence of the presence of gas in dangerous quantity in room number 46, from 150 to 190 feet from. room number 27, and the ignition thereof from the lamp of another miner almost simultaneously with the explosion at room number 27, burning also a miner at work in room number 48. It is claimed by plaintiff that this gas, ignited in room 46, exploded in room 27, injuring him. There is a conflict of evidence, therefore, preponderating in favor of the plaintiff; and we cannot disturb the verdict of the jury thereon, manifestly against the defendant.
The last is the principal defense. As to it, the position of the plaintiff is, first, that defendant’s duty to plaintiff was not fully discharged, as claimed; that, besides what was done, the defendant was obliged, at common law as well as by the statute, in the operation of the mine, to see that the air was “circulated around the main headings and cross-headings and working places” in the mine “to an extent that will dilute and render harmless and carry off the noxious and dangerous
Three questions, then, are presented for determination: What was the extent of the duty of defendant with respect to ventilation of the mine? Was the fire-boss incompetent? And, lastly, was it an act of negligence, chargeable to the defendant and contributing in an approximate degree to the injuries of the plaintiff, to shut doAvn the fan on the outside of the mine the day preceding the accident? We must consider them in the light of our statute, referred to, and previous adjudications thereon.
It seems to us that the provisions of the statute furnish a complete answer to all three questions, and particularly to the first. It is true, as a general rule, as this Court has said in Jackson v. Railroad Co., 43 W. Va. 380, 382, following Madden v. Railroad Co., 28 W. Va. 611, that the duty of the master to provide a reasonably safe place to work included in the general duty to furnish a safe plant, is a nonassignable duty; but, as is said in that case, “Would you say that when the farmer, mine owner, or lumberman sends a lot of hands upon his work in charge of a foreman or boss or overseer — call him as you may — he is to indemnify them against every mistake of the foreman while doing the work? That would make every business very perilous.” Of course this language must be regarded as having particular application to the facts in that case, but is significant here as pertaining to the general rule, stated there, that a master can not be held liable for an act of mere operation, no matter by Avhat servant done. The act in question, in its-several sections, was plainly intended to provide a complete code of rules and regulations for mine owner and miner, enacted particularly, as its several provisions plainly indicate, in the interest and for the protection of the miner; and so jealous of
The next question is, was the fire-boss incompetent? Our answer is, if he was the record does not show it. So far as the evidence goes, he had all the qualifications required or contemplated by our statute. Pie had had sixteen or seventeen years's experience as a coal miner, had “knowledge of fire damp and other dangerous gases,” and was “able to detect the same by the use of a safety lamp or lamps,” and so far as we can see from the evidence ‘ ‘had practical knowledge of the subject of ventilation of mines and the machinery and appliances used for that purpose,” as required by law. But we are asked to hold him incompetent because he said he had never used an anemometer, an instrument not mentioned in the statute, but used for measuring air. This would be to interpolate into the statute a qualification not required by it. The anemometer is not one of the instruments required by the statute to be kept on hand or furnished by the owner. A safety lamp is. By it the fire-boss is required to be able to detect the presence of dangerous and noxious gases. It was due to the alleged presence of these in dangerous quan
Was the stopping of the fan the day preceding the accident such negligence of the defendant to which the jury could refer the plaintiff’s injuries? The evidence does not disclose the length of time the fan was not in operation. Witnessés say that at nine o’clock in the morning and at twelve o’clock noon of July 4th the outside fan was not running; but for how long a time this continued they do not say. Other witnesses who saw this fan say it was running during July 4th at six o’clock, at nine o’clock, and between eleven and twelve o’clock in the morning, and between four and five o’clock in the afternoon, and all night of July 4th; so that if this fan had stopped running at the particular times mentioned, it may have been and probably was only for a short time to make repairs or for some other unavoidable reason. Unfortunately the fan runner in charge that day was dead at the time of the trial, and the exact fact can never be known. Section 409, contemplates the necessity of shutting down the fan when necessary, and provides that the workmen shall then be immediately instructed to withdraw, and that “no mine operator shall be required to keep the fan going where
In my investigations, I have found the English cases of Knowles v. Dickinson, 2 Ellis & Ellis, Q. B. 705, and Brough v. Homfray, 15 Min. Rep. 6, L. R. 3, Q. B. 771, relating to the ventilation of coal mines. In the first, a criminal case giving instruction to St. 18 & 19 Vict., C. 108, section!, the facts were that the ventilating apparatus was stopped at about two o’clock on each Saturday afternoon, and did not recommence work until between five and six o’clock on the following Monday morning, resulting in the accumulation of a great amount of foul air and dangerous gases in the mine in the meantime, of which the miners complained when returning to work on Monday morning. The statute required, among the rules to be observed, “an adequate amount of ventilation” to “be constantly produced in all collieries,” in order that the working places of the pits and levels of such collieries might “under ordinary circumstances be in a fit state for working, ” and imposed a x>enalty on the owner or agent if any colliery should be worked and the rules neglected or wilfully violated; and it was held that the agent of the colliery, which was actually worked only on such days, incurred the penalty for breach of the rule by neglecting to keep up adequate ventilation in the colliery during the suspension of actual work between Saturday night and Monday morning, for, notwithstanding such suspension, the colliery \vas during that time within the meaning of that section. In the second case it was held “not sufficient compliance with this rule to •cause ventilation to pass along the working places and traveling roads, but that so much of the mine must be kept so ventilated as to render the working places and traveling roads safe.” The case here presents no such state of facts as appeared in those cases. Our statute is not the same as the English statute. That provided for no special agents with
It remains to consider the instructions. The objections to-plaintiff’s instructions numbered 1, 3, 4, 5 and Y, given, are that they do not propound the law correctly, are inapplicable, and misleading. Numbers 1, 3, 4 and 5 in general terms told the jury that it was the duty of the defendant “to use reasonable care and diligence for the safety of its employees;” that the plaintiff had the right, in entering the service of the defendant, to presume it had discharged this duty, he being presumed to have assumed only those ordinary risks connected with his employment existing after discharge by defendant of its duties; that the specific non-assignable duties-of the defendant were to provide plaintiff a “suitable and reasonably safe place in which to work,” “to provide and maintain for the operation of its mines in mining coal * reasonably safe and suitable structures and instrumental-ities,” to use “ordinary care, ” “reasonable care, foresight and prudence” therein, and not expose plaintiff “to dangers, perils or hazards from which he could be guarded” thereby;, and each tells the jury, in general terms, that if they find from the evidence defendant failed in the performance of any of those duties, and by reason thereof and without negligence on his part the plaintiff was injured in the manner alleged, they must find for him. The seventh defines the words “ordinary care,” used in said instructions, to mean “such watchfulness, caution and foresight as under all the circumstances of the particular service a corporation controlled by prudent and careful officers should exercise.” The only evidence offered to prove negligence, and to which these instructions could possibly have application, related to the presence of gas in the mine, stoppage of the fan, and alleged incompe
Instructions 8 and 9 should not have been given. The first confuses the shutting down of the fan, which requires permission of the district inspector, with the temporary shutting-down thereof not requiring such permission; and erroneously assumes that the particular instances proven when the fan was not running on July 4th constituted negligence imputable to the defendant. Number 9 erroneously assumes there was evidence that the fan did not have capacity to supply the mine. As we have shown, there was no evidence justfy-ing either of these instructions; they do not state correct propositions of law applicable to this case, and should not have been given.
With respect to defendant’s instructions numbers 1, 2, 3, 5, 9, 10 and 12, refused: The first is a peremptory instruction
Defendant’s instruction number 2 was properly rejected. It erroneously assumes, as a general proposition that the duty of the operator of a mine to provide a reasonably safe place to work applies only to the particular place the employee is appointed to work, and tells the jury that if from the evidence they find the plaintiff at the time of his injuries had gone to room number 27 for some purpose of his own and not
We think instruction number 3 was also properly rejected. It assumes negligence on the part of the defendant in permitting gas to accumulate in the mine; but tells the jury that, if from the evidence they find the gas would not have occasioned injury unless ignited by a fellow-servant who went into the mine without permission of the fire-boss, or without notice or signal from the latter that the mine was safe, the plaintiff cannot recover. If there was culpable negligence of the defendant, the mere fact that the fellow-servant who ignited the gas had gone into the mine without such notice would not excuse the defendant for injuries resulting to' the plaintiff while rightfully in the mine. This instruction is based on Berns v. Coal Co., supra. In that case it was assumed that the miner injured was rightfully in the mine, and that a fellow-servant with lighted lamp went into a dangerous part of the mine contrary to orders of the operator, resulting in the injury of the plaintiff — quite a different state of facts from those in this case.
Instructions 5, 9 and 10 were rather too general, and are without specific reference to any evidence to which they are applicable. Besides, their rejection, as well as rejection of number 12, we do not think constituted error, as the subjects of these instructions were sufficiently covered by instructions numbers 6, 7 and 11, given. In such case the refusal of an instruction, although correct, is not error. Arthur v. City of Charleston, 51 W. Va. 132; Ward v. Brown, 53 W. Va. 227.
Our conclusion on the points involved will necessarily reverse the judgment below. But because the court erred in
Reversed, and Neto Trial Awarded.