Bracey v. Nw. Improvement Co.

CourtUnited States State Supreme Court of Montana
Citation41 Mont. 338
PartiesBRACEY et al. v. NORTHWESTERN IMPROVEMENT CO. et al.
Decision Date06 June 1910

41 Mont. 338

BRACEY et al.
v.
NORTHWESTERN IMPROVEMENT CO. et al.

Supreme Court of Montana.

June 6, 1910.


Appeal from District Court, Carbon County; Frank Henry, Judge.

Action by Ernest Bracey and others, by Alice Bracey, their guardian and by herself in her own right, against the Northwestern Improvement Company and another. From a judgment for defendants, plaintiffs appeal. Affirmed.


Walsh & Nolan and W. F. Meyer, for appellants. Wm. Wallace, Jr., John G. Brown, and R. F. Gaines, for respondents.

BRANTLY, C. J.

This action was brought by Alice Bracey in her own right, as the widow and heir of J. E. Bracey, deceased, and as guardian of her minor children, for damages for the death of said Bracey, which it is alleged was caused by the negligence of defendants. The death of Bracey was caused by the inhalation of poisonous gases during an attempt by him to rescue miners in the employ of the defendant company, in its coal mine at Red Lodge, in Carbon county, who had themselves been overcome by inhaling such gases while engaged in an effort to extinguish fire then burning in the mine.

The complaint is very long and somewhat indefinite in some of its allegations; but these may be epitomized as follows: The defendant Pettigrew was the superintendent and general manager of the defendant company and had full charge of its business operations. On and prior to June 7, 1906, there were in the mine gases, deadly and explosive. In order to expel them, the defendant company resorted to ventilation by means of electric fans, which drive currents of air into and through the passageways and out through other openings, thus expelling the gases, or, by reverse movement, drew them out by currents produced by suction, thus allowing fresh air to be forced in through other openings. In some of the passageways there were obstructions, created by débris which was permitted to accumulate therein from falls of rock and earth. These obstructed the free passage of air currents. There were unused workings, from which the coal had been extracted. In these, gases accumulated from time to time, and, escaping therefrom when the fans were not in operation, accumulated in the passageways. On and prior to June 7th a fire had for some days been burning in the mine. On June 6th one of the ventilating fans had been stopped, and for this reason gases accumulated in the passageways through which men going in to subdue the fire must pass. This fan was started on the morning of the 7th, but had not been running a sufficient time to clear the passageways of the gases. The defendants did not examine these to ascertain their condition. Several miners were sent in by the direction of defendant Pettigrew to subdue the fire, without being informed, however, of the presence of these gases, and, being overcome by them, were in peril of their lives. Information of this condition was brought to the knowledge of defendants and was circulated in the vicinity of the mine, and the defendants knew that rescue parties were likely to go in to effect a rescue. The deceased, Bracey, did not know of the conditions prevailing. At the request of the defendants, and by reason of the information gained through persons in the vicinity, Bracey entered the mine to aid in the rescue. After stating these facts, the complaint proceeds: “That the defendants, wholly disregardful of their duty in the premises, negligently failed to inform and advise the said J. E. Bracey, so entering said mine in the manner hereinabove set forth and under the circumstances therein stated, and for the purpose specified, as to the existence of the poisonous gases that had accumulated in said mine and the workings thereof, and that were then existing through the negligent acts and conduct of the defendants, as above set forth, and negligently failed to advise the said J. E. Bracey of the lack of ventilation then and there existing as above set forth; and the said J. E. Bracey, then and there ignorant of the lack of ventilation, and then and there suspecting and believing that the only dangers and risks to which he was then exposing himself in the work of rescue, aforesaid, were the dangers and risks which arose from the gases then being created and existing on account of the prevalence of the fire in said mine, hereinbefore referred to, on the date named entered said mine and the workings thereof for the purpose of rescuing the said named persons therein, and the said J. E. Bracey so entering said mine and the portions thereof where said work of rescue was to be performed by him, as aforesaid, and so engaged in said work, was overcome by the gases so...

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