Delaski v. Northwestern Imp. Co.

• Decision Date: 16 December 1910
• Citation: 61 Wash. 255,112 P. 341
• Parties: DELASKI et al. v. NORTHWESTERN IMPROVEMENT CO.
• Court: Washington Supreme Court

112 P. 341

61 Wash. 255

DELASKI et al. v. NORTHWESTERN IMPROVEMENT CO.

Supreme Court of Washington

December 16, 1910

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Mary Delaski and others against the Northwestern Improvement Company. Judgment for defendant. Plaintiffs appeal. Reversed, with directions for new trial.

W. R Bell, for appellants.

Carroll B. Graves and Charles H. Winders, for respondent.

GOSE J.

The appellants are, respectively, the surviving wife and minor children of John Delaski, deceased. They brought this action to recover damages sustained by reason of the death of the husband and father, alleging that his death was caused by the inhalation of poisonous gases negligently permitted to accumulate in the coal mine of the respondent. At the close of the appellants' evidence, a judgment of nonsuit was entered. This appeal followed.

The respondent has moved that the statement of facts be stricken and the judgment affirmed. The grounds of the motion are (1) that the statement was filed on the 91st day after the entry of the judgment; and (2) that the certificate of the judge is defective, in that he only certified that the statement contains 'all the material evidence and testimony introduced upon the trial.' A part of the evidence set forth in the statement is in a condensed and narrative form. On the 2d day of August, which was the eighty-fourth day after the time for taking the appeal had commenced to run, an order was entered giving the appellants until the 8th day of August, which was the ninetieth day, in which to file and serve a statement of facts. The 8th day of August fell upon Sunday, and the statement was filed and served the following day. Where the last day for the performance of an act falls upon Sunday, it is excluded in the computation of time. Rem. & Bal. Code, § 252; Rogers v Trumbull, 32 Wash. 211, 73 P. 381; Bank of Shelton v. Willey, 7 Wash. 535, 35 P. 411; Spokane Falls v. Browne, 3 Wash. St. 84, 27 P. 1077. This court has held that the testimony may be certified in the narrative form, and that a certificate like the one in the case at bar meets the requirements of the statute. Murray v. Shoudy, 13 Wash. 33, 42 P. 631. The motion to dismiss is denied.

The record presents the following material facts: The deceased, an experienced miner, was 35 years of age, and on the morning of the day of his death, which occurred in the afternoon of August 8, 1905, was in good health. He and his minor son, 12 years of age, were working in a coal mine at Roslyn, called mine No. 2, in room 14, on the tenth level. At 12 o'clock they retired to the entry, or incline as it is called in the testimony, to eat their lunch, and returned to their work in room 14 about 15 minutes later. When they had reached the gangway going to their lunch, they heard a blast or shot in room 10. As they returned to their work, they observed smoke coming from rooms 11 and 12 and in the gangway. The face of the coal in room 14 where they were working was 137 feet distant from the gangway, and there was no connecting crosscut from room 12. About a half hour after they returned to their work, the boy became sick and dizzy, and his father directed him to go to a point near the gangway where they had left a bucket containing coffee, and get a drink. As he was returning, his father called to him for a drink, and the boy returned to get the coffee. The father fell about 15 feet from the face of the coal where he had been working before the boy could return to him, was taken out of the mine in an unconscious condition, and died about four hours later without having regained consciousness. He was proceeding toward the gangway when he fell. The evidence tends to show that his death was caused by the inhalation of poisonous gases. He and the boy had worked in rooms 13 and 14 for about three months before the accident occurred. The foreman had directed the employés not to fire shots between shifts. The day shift was from 8 a. m. to 4:30 p. m. Notice to that effect was posted on the outside of the mine. The brattices or canvas curtains, which were hung from the roof across the gangway between rooms 13 and 14, were torn and defective. Their purpose was to deflect the air current from the gangway into and through the several rooms. It was the duty of the fire boss to see that they were kept in repair. The appended map will illustrate the working plan on the tenth level:

(Image Omitted)

What we have called the gangway is designated on the map as 'Haulage Road' and '10th level.' The coal cars are operated along this passageway. The brattices extend from the ceiling or roof of the mine to the floor of this passageway.

We think the record discloses at least two statutory breaches of duty upon the part of the respondent. The statute (Rem. &amp Bal. Code, § 7381) provides that the owner, agent, or operator of every coal mine shall provide in the mine 'a good and sufficient amount of ventilation for such persons and animals as may be employed therein, the amount of air in circulation to be in no case less than 100 cubic feet per minute for each man, boy, horse, or mule employed in said mine, and as much more as the inspector may direct, and said air must be made to circulate through the shafts, levels, stables and working places of each mine.' Section 7382 provides that 'no heading shall be driven more than sixty feet from the face of each chamber, breast, or pillar, unless for the reason that he deem the same impracticable the inspector gives permission in writing to extend the distance beyond sixty feet.' Neither of these provisions was complied with. As we have pointed out, there is evidence from which it may be inferred that the air was not made to circulate through rooms 13 and 14. The brattices or curtains, designed to accomplish this purpose, were defective. The respondent argues that there is no evidence that the air was not properly deflected in and around rooms 13 and 14. It seems to us that the fact that the brattices were torn and defective, that one man lost his life, and that the boy became sick and remained sick and confined to his bed for some hours from inhaling poisonous gases is most convincing evidence that the air was not made to circulate where they were working. It is said that there is no evidence that the respondent did not have written permission from the inspector to extend rooms 13 and 14 more than 60 feet from the gangway or level. The fact that it was so extended, and that there were no crosscuts, was, however, shown. If the respondent had the written permission to so extend the rooms, it has the burden upon it of showing that fact. Sackman v. Thomas, 24 Wash. 660, 64 P. 819. The provisions of the statute measure the respondent's duty. The Legislature, in recognition of the hazards of working in coal mines, has made careful provisions for their inspection, and imposed imperative...