Cerrillos Coal R. Co. v. Deserant
| Decision Date | 06 August 1897 |
| Citation | 49 P. 807,9 N.M. 49,1897 -NMSC- 005 |
| Parties | CERRILLOS COAL R. CO. v. DESERANT. |
| Court | New Mexico Supreme Court |
Error to district court, Santa Fé county; before Justice N. B Laughlin.
Action by Josephine Deserant, administratrix, against the Cerrillos Coal Railroad Company, for the death of plaintiff's intestate. From a judgment in favor of plaintiff, defendant brings error. Reversed.
H. L Waldo and R. E. Twitchell, for plaintiff in error.
N. B Field and F. W. Clancey, for defendant in error.
For convenience, the parties to this record will in this opinion be referred to as they appeared in the lower court, i. e Plaintiff in error will be called defendant, and vice versa. This is an action by the administration of Henri Deserant, deceased, against the Cerrillos Coal Railroad Company, in which damages are claimed for negligence in causing death in its mine, called the "White Ash Mine," on Wednesday, February 27, 1895, as a result of an explosion occurring about 10:45 o'clock in the forenoon. The declaration charges the negligence in various ways conducing to bring about or cause said explosion, but the evidence will be at present considered only as it bears upon the theory which plaintiff's counsel have most insistently urged upon us. This theory is that, in room 8 of the fourth left entry of said mine, defendant negligently permitted to accumulate, and to remain standing for at least 48 hours prior to the explosion, gas in dangerous quantity and ratio to the surrounding air, and that the explosion occurred in the presence of the ordinary naked lighted miner's cap lamp, and that the same was exploded by employeés of the company, producing after-damp, fatal to life, and causing the death of plaintiff's intestate, in room 17 of said fourth left entry, the working place to which he had been sent by defendant. It appears that, by this explosion, all the employeés, 23 in number, who were at the time in the fourth left entry (except those in what was called the "plane") were killed, and therefore all evidence to show how the explosion occurred, and where was its initial point, is necessarily circumstantial.
The fire boss was an employeé whose duty it was to inspect the working places, and inform miners, like deceased, who work by contract,--i. e. were paid according to the quantity of coal mined,--of the condition as to safety of their working places; and he told, or, as he expresses it, he must have told, the deceased, that his working place was safe when he went to work at 7 o'clock, on the morning of the explosion. As to this duty, the fire boss must be considered, we think, beyond question, as representing the defendant. Thus, it is expressly held in Cullen v. Norton, 52 Hun, 9, 4 N.Y.S. 774, that a foreman intrusted with the performance of work stands in the place of and represents the master in assigning the servant to his place of labor, and in Railroad Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, it is held that
The fire boss had, in his round of inspection, two days before the explosion, discovered standing gas in said room 8 (how much does not appear), which caused him to place therein a danger signal, being what is known as the "fire boss' danger mark,"--a double X, or XX, with date and initial letters of his name. It is shown that such a signal was well understood by all employes to be an imperative command forbidding entrance with a naked light into any room or place where danger was thus indicated. The fire boss did not go again into room 8 until after the explosion, nor is there anything to show that any effort was made to clear this room of standing gas, which, by means of the safety or Davy lamp, he had detected there, notwithstanding that room 8 was considered the worst room in the mine for generating gas. It does not appear in precisely what place in room 8 the danger signal was placed, the fire boss merely saying it was "above the last crosscut." After the explosion, there were found in this room the corpses of two miners, Kelly and Flick,--that of Kelly in the crosscut, and that of Flick in the center of the track, about the end; that is, halfway up between the crosscut and the face of the room, about 45 feet from the crosscut. A tie with fire danger mark on it was found lying across the track, opposite the crosscut. The track was partially taken up. There were implements there commonly used for such purposes, and there were there also two miners' caps and the lamps which carry a naked light, which indicated that Kelly and Flick had gone to room 8 to take up the track, and had partially succeeded when the explosion occurred. According to the plan of ventilation, the air should, as to the rooms in the fourth left entry, have gone first to room 18, and, by brattice or curtains, been carried around its face; thence, by crosscut, to room 17, carried around face; and so on, to the rooms lower numbered, in consecutive order, until arriving at the third left entry air course, being drawn through all air courses and entries by an exhaust fan at the exit from the mine. It is agreed also between all witnesses that a gas explosion in a mine invariably files against the air, and therefore, if there were an explosion in room 8, it would have flown towards room 17, where the body of plaintiff's intestate was found, if air were circulating, as the testimony shows, through the fourth left entry of said mine. Defendant produced a considerable amount of evidence showing air circulation, and what was produced by plaintiff tended to show, at most, only a partial obstruction of the fourth left air course, diminishing, but not destroying, the current, the effect of which will be considered in another place in this opinion. We may assume, therefore, that there was, undoubtedly, some air current, because this seems necessary for plaintiff's theory of the effect of the explosion being carried back to room 17, and, further, because there is nothing tending to show the entire absence of an air current going in the direction intended.
The rule adopted in the White Ash Mine, of the fire boss making rounds of inspection, and advising miners, as they went to work, of the condition of their places as to safety, and the fact that all employes well understood that danger signals were used in the mine to prevent entrance into particular places or rooms, presupposed that deceased and his co-employés knew that work was or might be carried on without cessation, though there might be standing gas in places or rooms of the mine, and that they understood, when informed that their working places were safe, that such representation did not mean there was no standing gas in the mine, or in any particular entry of the mine. It can hardly be denied that if the fire boss, on the morning of Deserant's going to work in room 17, had expressly told him there was standing gas in room 8, but it was marked with a danger signal, and Deserant had, nevertheless, gone to his place to work, the presence of such gas could not be urged as negligence by defendant causing his death, unless it were also shown that the room was not danger marked. If the evidence shows that he impliedly agreed to such a condition, the same conclusion should follow. In Sullivan v. Manufacturing Co., 113 Mass. 396, Devens, J., states the rule to be that If, in the case at bar, "the business was conducted" by placing a danger signal where there was standing gas, it will not do to say the defendant should, in addition, have placed a man on duty to watch and warn against entrance with naked light, because it might be thought, as a reasonable precaution, such was demanded. In Naylor v. Railway Co. (Wis.) 11 N.W. 24, it is held that "if a servant, knowing the hazard of his employment as the business was conducted, is injured while employed in such business, he cannot maintain an action against the master for such injury, because he may show there is a safer mode in which the business might have been conducted, and that, had it been conducted in that way, he would not have been injured." To the same effect, also, is Hewitt v. Railroad Co. (Mich.) 34 N.W. 659. In Sheets v. Railway Co. (Ind. Sup.) 39 N.E. 154, it was ruled that "where the foot of deceased was caught in an unblocked switch, and he is run upon and killed by the careless act of the engineer in kicking cars with great and unnecessary force, the railway company was not liable, because it was the act of fellow servant, and the fact of the frog being unblocked does not change the rule, as that was a danger known to the deceased, making the accident a risk incident to the service." Before that, the Indiana supreme court held to the same effect, in Railroad Co. v. Henderson, 33 N.E. 1021,...
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