Deserant v. Cerrillos Coal R. Co.

• Decision Date: 17 December 1898
• Citation: 55 P. 290,9 N.M. 495,1898 -NMSC- 028
• Parties: DESERANT v. CERRILLOS COAL R. CO.
• Court: New Mexico Supreme Court

55 P. 290

9 N.M. 495, 1898 -NMSC- 028

DESERANT v. CERRILLOS COAL R. CO.

Supreme Court of New Mexico

December 17, 1898

Syllabus by the Court.

1. In a suit brought to recover for the death of a coal miner, who is killed in an explosion in a coal mine, where the plaintiff claims that the explosion was caused by an air course being partially obstructed by an accumulation of water, so that sufficient air was not passing through it to properly ventilate the mine, the burden of proof is on the plaintiff to show that such air course was so obstructed that sufficient air was not passing through it.

2. The pit boss of a mine, working under a superintendent who has charge of the whole property and its workings, is a fellow servant of the other employés, and the corporation is not liable to an administratrix for the death of an employé caused by an explosion occasioned by workmen going into a room where there is an accumulation of gas, over a danger signal, with a naked light, either by the direction of the pit boss or with him.

Error to district court, Santa Fé county; before Justice N. B Laughlin.

Actions by Josephine Deserant, administratrix of Henry Deserant against Cerrillos Coal Railroad Company. The actions were consolidated. Judgments for defendant, and plaintiff brings error. Affirmed.

Niell B. Field and Frank W. Clancy, for plaintiff in error.

Henry L. Waldo and Ralph E. Twitchell, for defendant in error.

MILLS C.J.

This is the second time these cases have been here for review. In these several actions damages are claimed by the plaintiff as administratrix, against the defendant, for the death of her husband, Henry Deserant, and her sons, Jules Deserant and Henry Deserant, Jr., by an explosion which occurred in the White Ash Mine on Wednesday, February 27, 1895, at about 10:45 a. m. For the purpose of the trial, the three cases were consolidated by order of the court below, and were also heard in this court in the same manner. The declarations charge negligence in various ways, but on the trial no proof other than circumstantial was offered to show what was the cause of the explosion, or where it began. In the language of the learned judge who wrote the opinion when this case was last before this court: "It appears that, by this explosion, all the employés, 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." Railroad Co. v. Deserant. 48 P. 807. It is unnecessary for us to go into the particulars of the accident or show the workings of the mine, as they are sufficiently set out in the case of Railroad Co. v. Deserant, supra heretofore reported. The only substantial difference in the evidence is that on the former trial it was testified that the body of Kelly was found in the upper crosscut, between rooms 8 and 9, and the body of Flick was found on the railroad track, in room No. 8, above the crosscut; while in the present case it is shown by the testimony of Kelly, one of the witnesses for the plaintiff, that the bodies of Kelly Flick, and Donohue were found within a few feet of each other. The theory of the prosecution as to the cause of the explosion is the same now as then, to wit, that, owing to an accumulation of water, previous to the explosion, in a low place in the fourth left air course, a sufficient quantity of pure air was not...