Bolen-Darnall Coal Co. v. Williams

• Decision Date: 23 October 1908
• Docket Number: 2,717.
• Citation: 164 F. 665
• Parties: BOLEN-DARNALL COAL CO. v. WILLIAMS.
• Court: U.S. Court of Appeals — Eighth Circuit

164 F. 665

BOLEN-DARNALL COAL CO. v. WILLIAMS.

No. 2,717.

United States Court of Appeals, Eighth Circuit.

October 23, 1908

S Guerrier, for plaintiff in error.

Harley & Lewis, for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

This is an action for personal injury resulting from an alleged explosion in a coal mine, with verdict and judgment for the plaintiff below for $12,500. This judgment was affirmed by the Court of Appeals of the Indian Territory.

The defendant in error (hereinafter designated the plaintiff) was working in the east entry on the seventh level of the mine. Just after he had fired his last charge for the day and was passing out up the level, a flame came up from below overtaking and burning him severely. There are multiplied acts of negligence imputed in the petition to the defendant company as the cause of the injury. As it is apparent from the trial, the charge of the court and the briefs of the respective counsel, that the recovery was had upon one specified ground, it would subserve no practical end to discuss other allegations of the petition. This specification is as follows:

'That defendant company carelessly and negligently permitted great quantities of inflammable coal dust to accumulate on the main slope in the said entry and in the seventh east entry, and at and near the face of the main slope in said mine, which said inflammable coal dust became ignited, in some manner to plaintiff unknown, causing plaintiff to receive the injuries hereinbefore and hereinafter set out.'

In support of its action the plaintiff below invoked the act of Congress approved July 1, 1902, c. 1356, 32 Stat. pp. 631 632, which declares that: 'Wherever it is practicable to do so, the entries, rooms, and all openings being operated in coal mines, shall be kept well dampened with water to cause the coal dust to settle, and that when water is not obtainable at reasonable cost for this purpose accumulations of dust shall be taken out of the mine, and shall not be deposited in way places in the mine where it would be again distributed in the atmosphere by the ventilating currents.'

As the evidence showed, without dispute, that there was abundant water obtainable for the purpose indicated in the foregoing statute, and that the defendant did use the water therefor, the natural meaning of the statute is that although there may have been accumulations of dust in said mine, yet if the owner kept the same well dampened with water to cause the dust to settle, it had performed its duty under the statute, and was not liable from the mere fact of the accumulation of coal dust in the mine.

In Cherokee & P. Coal & M. Co. v. Wilson, 47 Kan. 460, 28 P. 178, the court said:

'The explosiveness of coal dust is an open and unsettled question, and, in an action to recover for injuries resulting in a coal mine, the court will not take judicial notice that dry, fine coal dust is a dangerous and explosive element.'

It being a disputed and open question among expert miners and in scientific treatise on the subject whether or not coal dust in a mine is inflammable, Congress, without determining such question, evidently intended by the foregoing enactment to minimize the danger from the presence of such accumulated dust by requiring its removal, or that the mine owner should keep it well dampened with water to cause the dust to settle; the though doubtless being that the danger of ignition or the deleterious effect of such dust was to be apprehended from the particles being distributed in the atmosphere, and that this could be measurably prevented by dampening the deposits of such dust.

It was, therefore, an important issue of fact in this case, after proof tending to show that there was an accumulation of coal dust along the tracks of the tramway and on the slope-- a condition inseparable from such mining operations-- whether or not the mine owner observed the statute in respect of dampening the dust with water. The evidence showed that the water supply was near the fourth level of the mine. It was taken therefrom in a box on a water slide containing about 60 cubic feet in measurement, say 449 gallons of water. This box when brought to the level was dropped by a rope attached thereto down the slopes and the entries. There was a pipe encircling the ends of the box to throw the water outside of the rails of the track. The box being six feet long, the water, as stated by a witness, in its sprinkle or spray would cover eight inches beyond the ends of the box. In other words, it would sprinkle a width of seven feet four inches; the width of the slope generally being about seven feet, and in places where there was a dip it might be nine feet wide. The evidence was that the distance from the fourth level to the bottom of the lowest level was about 400 feet. From the sixth to the seventh level the witness who did the watering testified that the 'lifts were a hundred feet'; and from the seventh down to the face of the slope it was 'about one hundred and a quarter'-- that is, 125 feet. He further testified that he turned the box of water loose 'about thirty or forty feet below the sixth' (level).

He also testified that on previous days he watered the slope once or twice extra, whenever he thought it needed it. How much of this water reached the bottom of the slope is not definitely known. The witness Wilburn, fire boss of the mine at the time, testified that the...