Cherokee & P. Coal & Mining Co. v. Limb

Citation47 Kan. 469,28 P. 181
CourtUnited States State Supreme Court of Kansas
Decision Date05 December 1891
PartiesTHE CHEROKEE & PITTSBURG COAL & MINING COMPANY v. JOHN LIMB, as Administrator of the estate of Daniel Limb, deceased

Error from Crawford District Court.

THE material facts are stated in the opinion. Judgment for plaintiff, Limb, at the July term, 1890. The defendant Company brings the case to this court.

Judgment reversed.

Geo. R Peck, A. A. Hurd, Robert Dunlap, and O. J. Wood, for plaintiff in error.

J. F McDonald and W. R. Biddle for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

An explosion occurred on November 9, 1888, in Frontenac mine No. 2, owned and operated by the Cherokee & Pittsburg Coal & Mining Company, whereby Daniel Limb, an employe of the company, was killed. He was an unmarried man, and left surviving him David Limb and Hannah Limb, his parents, next of kin and heirs at law. This action was brought by John Limb, as administrator of the estate of Daniel Limb, deceased, against the company, for the benefit of his parents, to recover damages for the pecuniary loss which they sustained by his death. It was alleged in the petition that the death was caused by the negligence of the company in permitting the accumulation in the mine of dry, inflammable, combustible and explosive coal dust, which was communicated with by a blast of powder, causing a general explosion and the killing of Limb, who was at work in the mine, and who was then in the exercise of due care. The company denied the allegations of the petition, and contended that Limb's death was caused and materially contributed to by his own negligence. The trial resulted in a verdict in favor of the plaintiff below for $ 1,500. At the trial testimony was given tending to show that dry coal dust is a dangerous and explosive element in a mine, and that the danger may be allayed by properly sprinkling the mine with water. Some testimony was offered which tended to show that the persons in charge of the mine were aware of the dangerous character of the dust, and had sprinkled the mine to some extent, but had not done so sufficiently to prevent the explosion. The testimony of the company was in direct conflict with that produced by the plaintiff below, and tended to show that coal dust is not an explosive, and that the company and its managers were not negligent, as charged, and that the injury and accident were caused by the explosion of large quantities of gunpowder, carelessly ignited by Limb or some other of the miners. The explosion which caused the death of Daniel Limb is the one referred to in the case of the Cherokee & Pittsburg Coal & Mining Company v. Richard Wilson, administrator, etc., just decided. The testimony respecting the condition of the mine, the explosion, its origin and effects, and the knowledge of the company in regard to the dangerous character of coal dust, and what was necessary to overcome the danger, and also in regard to its want of care, is substantially the same as in the Wilson case. It was there held that the testimony, though not full or satisfactory, was sufficient to take the case to the jury; and it must be so held in this case. Hence it cannot be held that the court erred in overruling the demurrer to the evidence of plaintiff below, or in failing to direct a verdict in favor of the company. Several errors are assigned on the admission and rejection of testimony. It is unnecessary to make special reference to these. We have examined them with care and find that the exceptions cannot be sustained.

It is contended that the verdict is excessive, and unsupported by testimony showing that the next of kin sustained pecuniary loss by the death of Daniel Limb. In this respect there is a fatal lack of testimony. It is not shown that the parents of...

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21 cases
  • York v. Pacific & Northern Ry. Co.
    • United States
    • United States State Supreme Court of Idaho
    • June 27, 1902
    ......428; Atchison etc. Ry. Co. v. Ryan, 62 Kan. 682, 64 P. 605; Cherokee. etc. Co. v. Limb, 47 Kan. 469, 28 P. 182; Hurst v. Detroit City Ry., ......
  • Armentrout v. Hughes, 521
    • United States
    • United States State Supreme Court of North Carolina
    • January 31, 1958
    ...Cir., 138 F. 867, 1 L.R.A.,N.S., 1161; Atchison, T. & S. F. R. Co. v. Weber, 33 Kan. 543, 551, 6 P. 877, 52 Am.Rep. 543; Coal Co. v. Limb, 47 Kan. 469, 471, 28 P. 181; Jacksonville Electric Co. v. Bowden, 54 Fla. 461, 45 So. 755, 15 L.R.A.,N.S., 451; Johnston v. Cleveland & T. R. Co., 7 Ohi......
  • Powell v. Union Pacific Railroad Company
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    • United States State Supreme Court of Missouri
    • March 3, 1914
    ......Railroad, 195 Mo. 428; Railroad v. Townsend, 71 Kan. 529; Coal Co. v. Limb, 47 Kan. 469; Railroad v. Ryan, 62 Kan. 682; Cahill v. ......
  • McCoullough v. Chi., R. I. & P. Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • June 7, 1913
    ...526, 57 N. W. 365;Winnt v. Railway Co., 74 Tex. 32, 11 S. W. 907, 5 L. R. A. 172;Railway v. Ryan, 62 Kan. 682, 64 Pac. 603;Coal Co. v. Limb, 47 Kan. 469, 28 Pac. 181. See, also, Hale on Damages (2d Ed.) §§ 140-142. In the case before us the most that can be said for the evidence is that it ......
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