Western Coal & Mining Co. v. Berberich

• Citation: 94 F. 329
• Decision Date: 10 April 1899
• Docket Number: 1,094.
• Parties: WESTERN COAL & MINING CO. v. BERBERICH.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

94 F. 329

WESTERN COAL & MINING CO. v. BERBERICH.

No. 1,094.

United States Court of Appeals, Eighth Circuit.

April 10, 1899

It is the duty of a master operating a mine to use all appliances readily attainable, known to science, for the prevention of accidents arising from the accumulation of gas or other explosive substances.

This action was brought by Joseph Berberich, plaintiff below against the Western Coal & Mining Company, defendant below to recover damages for personal injuries sustained by the plaintiff, while working for the defendant as a coal miner in its coal mine, by reason of an explosion of gas in the mine. The cause of action is thus stated in the complaint 'That prior to the 18th day of December, 1893, defendant employed and engaged plaintiff to work in said coal mine of defendant at Denning, Franklin county, Arkansas, as a miner to dig and mine coal; that by reason of said employment plaintiff was by defendant required to go down in said mine a great distance in the earth, and plaintiff says that, by reason of defendant's so employing him to work in said mines as aforesaid, it then and there became and was the duty of defendant to furnish plaintiff a reasonably safe place to work in said mine as said miner; yet plaintiff says that defendant wholly disregarded its duty towards plaintiff in that behalf, and that on the said 18th day of December, 1893 while plaintiff was engaged at work for defendant as such miner in one of the rooms of said mine at Denning, Arkansas, the defendant, by and through its agents and servants, so carelessly, negligently, and wrongfully conducted and managed said room in said mine, in this, that defendant failed to provide a sufficient amount of fresh air in said mine and room to keep them free from gas, fire damp, or other combustible matter unknown to plaintiff, and by reason of his failure aforesaid allowed the same to accumulate in said room and mine, which the defendant then well knew, or by the exercise of ordinary care and diligence, on the part of the defendants and its agents, should have known; and that on the said 18th day of December, 1893, without any fault or negligence on plaintiff's part whatever, the said gases, fire damp, and combustible matter exploded, and by reason of said explosion plaintiff was burned, wounded, crippled, disfigured, and maimed for life.' The defendant denied the negligence, alleged the accident was caused by the negligence of the plaintiff's fellow servants, and that the plaintiff was guilty of contributory negligence. there was a trial before a jury, and a verdict and judgment for the plaintiff, and the defendant sued out this writ of error. The following are some of the leading facts which the testimony tended to establish: Four or five days before the explosion occurred, a rock 15 to 18 feet long, 2 feet wide, and 18 inches deep in the middle, tapering to a feather edge, fell from the roof of the room in which the plaintiff and one Noll were working, leaving what miners call a 'horseback.' The fall of this rock was followed by a sudden flow of gas into the room, on account of which the pit boss gave orders not to work in the room on that and the following day. The third day after the explosion the pit boss examined the room, said there was gas in it, and gave them Davy or safety lamps to work with, which they used that day and the next. The next day was Sunday, and they did not work. About 7 o'clock on Monday morning the plaintiff and Noll, and Brown, the pit boss, met at the mine. Brown went into the room, examined it, and then called the plaintiff and Noll in and told them there was no danger, and to go to work with the miners' common open lamps, but to keep their lamps down, and not carry them on their hats. They went to work as directed, and worked until 3 o'clock in the afternoon, when a lump of coal which they had wedged off of the roof of the room fell to the floor, carrying with it a piece of slate two or three feet square and half an inch thick, and immediately the explosion of gas occurred. The main controversy between the parties was over the question whether the explosion was the result of a sudden rush of gas released by the removal of the lump of coal and slate from the roof, or whether it was produced by the sudden agitation of the gas already in the room by the falling of the coal and slate, or from the increased volume of gas resulting from its gradual or normal increase owing to the defective ventilation of the room resulting from the negligence of the defendant or its pit or fire boss.

The court gave the following instructions at the defendant's request: 'If the jury believe from the evidence that the defendant's fire boss inspected plaintiff's room on the morning of the day plaintiff was injured, before plaintiff went to work therein, and the fire boss told plaintiff the room was safe, but to work with his lamp on the ground; that plaintiff entered the room about 7 o'clock in the morning, and continued to work therein without accident or injury up to about 3 o'clock in the afternoon; that the quantity of air circulating through plaintiff's room was the same from the time he began work until the time of the explosion; and that while working in that room, at about the hour of 3 o'clock in the afternoon, wedging the top coal, a piece of rock or slate fell, and that the falling of this rock exposed the gas feeders, and that instantly upon the fall of this rock the explosion took place,-- then, under this state of facts, no such negligence as is charged in plaintiff's complaint is shown as entitled plaintiff to recover, provided you also find that the gas which exploded was gas coming from this feeder, or that whatever gas was in the room or working place would not have exploded except for the gas coming from the feeder. If the jury believes from the evidence that the explosion causing the injury for which plaintiff sues was produced by the unexpected developing and exposure of the gas, or the sudden outburst of gas caused by the fall of rock or slate from the roof of the room in which plaintiff was at work, then such explosion was an accident for which defendant is not liable, and the jury should find a verdict for the defendant. The law does not impose on the defendant company the duty and burden of insuring absolutely its employes against casualties and injuries, for there are certain dangers incident to, and inseparable from, the nature of such work, known to exist, or to be ordinarily attendant thereon, the risk of which the employe takes upon himself, and for which risk the law presumes he receives sufficient compensation from the wages paid him. For instance, if, in such a mine, there should be a sudden or unforeseen uncovering of a gas fissure, or feeder (as called by the miners), or, if there should be ever present in such a mine a certain per centum of fire damp or gas, which no reasonable foresight or exertion of the company can discover or prevent, and there should be more or less exposure to casualties on account of such incident, it would be of the risks assumed by the employes.'

Ira D. Oglesby, for plaintiff in error.

Sam R. Chew (Henry L. Fitzhugh, on brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge (after stating the facts as above).

At the close of the testimony the defendant preferred a request for a peremptory instruction to the jury to return a verdict for the defendant, upon the ground that the testimony was not sufficient to warrant a verdict for the plaintiff. The court refused to give the instruction, and this ruling is the first assignment, and apparently the one chiefly relied on, as some 60 pages in the brief of 73 pages are taken up with its discussion. The testimony as to the facts was voluminous and conflicting, and the opinions of the experts, as commonly happens, supported the contention of the party calling them. There is no ground for the contention that there was no evidence to support the verdict, at most it could only be claimed that the verdict was against the apparent weight of the evidence; but that give this court no warrant to meddle with the verdict of the jury. To do so would be an invasion of the province of...