Dickinson v. Stuart Colliery Co.
| Decision Date | 19 November 1912 |
| Citation | 76 S.E. 654,71 W.Va. 325 |
| Parties | DICKINSON v. STUART COLLIERY CO. |
| Court | West Virginia Supreme Court |
Submitted February 20, 1912.
Syllabus by the Court.
The fact of an explosion in a coal mine is not prima facie evidence of actionable negligence on the part of the owner or operator of the mine. The rule res ipsa loquitur does not apply.
It is actionable negligence for the owner or operator of a coal mine to employ a boy under the age of twelve years to work in such mine, in violation of section 412, chapter 15H, Code 1906.
Where a father consents to or is a party to a contract of employment of his infant son under twelve years of age, in a coal mine in violation of section 412, chapter 15H, Code 1906, and the son is killed by an explosion in the mine, and the father would be sole beneficiary of any recovery, his contributory negligence in respect to such employment will bar action against the owner or operator of the mine, for damages unless such owner or operator be guilty of some other act of negligence, not of a fellow servant, shown to have been the proximate cause of such explosion, and consequential death of such infant employé.
Error to Circuit Court, Fayette County.
Action by R. H. Dickinson against the Stuart Colliery Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Littlepage, Cato & Bledsoe, of Charleston, and C. W. Osenton and C. R. Summerfield, both of Fayetteville, for plaintiff in error.
Mollohan, McClintic & Mathews, of Charleston, and Dillon & Nuckolls, of Fayetteville, for defendant in error.
This is an action by plaintiff, as administrator, under sections 5 and 6, chapter 103, Code 1906--our Lord Campbell's Act--for wrongfully causing the death of Dallas E. Love, a boy under twelve years of age, employed in defendant's coal mine, the result of an explosion on January 29, 1907.
On the trial, after plaintiff had introduced all his evidence and rested, the court below, on motion of defendant, struck out all the evidence, directed a verdict for defendant, and thereon pronounced the judgment of nil capiat, now complained of.
The declaration contains thirteen counts, charging defendant with negligence in the performance or non-performance of many statutory and common law duties; but no attempt was made to establish by evidence negligence of omission or commission, except, (a) failure to provide a second opening as provided by section 405, chapter 15H, Code 1906; (b) failure to provide a proper system of ventilation; (c) stopping or slowing down of the fan by the superintendent on the day of the explosion; (d) employment of decedent, a boy under the age of twelve years contrary to section 412, of chapter 15H, Code 1906. It is claimed that the evidence of these facts admitted, or erroneously rejected, at the least, make a prima facie case of negligence, entitling plaintiff to have the case go to the jury, and to a recovery if the jury so found.
We cannot, however, accede to this proposition. The fact is admitted and proven that the mine had but the one opening; it was comparatively a new mine, and a second opening in process had not yet been completed; but there was absolutely no evidence showing or tending to show that the want of a second opening was the proximate or even remote cause of the explosion or injury. Moreover, witnesses for plaintiff admit that the system of ventilation was ample and sufficient to have properly ventilated the mine, that this fan was of the best and most improved inventions, and that properly operated it would have furnished ample ventilation to all parts of the mine, considering the nature and character of the mine for generating noxious and dangerous gases. Complaint is made of the rejection of the evidence of expert witnesses on the question, of the safety of the mine without a second opening, and of other assumed defects in construction; but the questions propounded were very indefinite, and no showing was made as to what the evidence would be, and if material, we cannot say there was error in the rulings of the court thereon.
Next, as to the stopping or slowing down of the fan by the superintendent. Evidence admitted, and rejected, showed or tended to show that on the day, and a short time before the explosion, the superintendent, while necessary repairs were being made in the shaft, and on complaint of the men at work there of cold air going down the shaft, slowed down the fan from seventy-five to twenty-five revolutions per minute. Assuming this to be the act of a vice principal, and violative of section 409, chapter 15H, Code 1906, as claimed, there is not a particle of evidence showing or tending to show that twenty-five revolutions would not furnish sufficient air to ventilate the mine, or that this act of the superintendent was the proximate cause of the explosion and of the consequential injury to the deceased. The fact is, however, that the section of the statute referred to permits the shutting down of the fan when repairing the machinery or doing other work in the mine which may make it necessary. But it is not claimed the fan was wholly shut down, but only that the speed was reduced, not a violation of the statute unless a higher speed was required to properly ventilate the mine during the time required to repair the shaft. The slowing down of the fan to make repairs, not shown to have proximately caused the explosion, was therefore simply one of the dangers necessarily incident to the operation of the mine, and for which no actionable negligence can be imputed to defendant, though ordered or done by the vice principal, the superintendent.
The fact of the explosion is not, as plaintiff's counsel affirm, even prima facie evidence of negligence, calling for explanation. In other words the rule res ipsa loquitur does not apply. We take judicial notice that explosions occur in the best equipped, best regulated and perfectly ventilated mines. Moreover, the owner or operator is not liable when the explosion is the result of negligence of a fellow servant, and not of its neglect to furnish a reasonably safe place in the first instance, or to employ a competent mine boss or fire boss, or to perform some other...
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