Great Western Coal & Coke Co. v. Coffman
| Decision Date | 22 September 1914 |
| Docket Number | 4329. |
| Citation | 143 P. 30,43 Okla. 404,1914 OK 434 |
| Parties | GREAT WESTERN COAL & COKE CO. v. COFFMAN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where in a suit in damages for personal injury, plaintiff sought to recover upon the theory that the explosion, resulting in the death of her intestate, was caused by the failure of the defendant to comply with the statute (Rev. Laws 1910, §§ 3982 and 3975), and where defendant denied a violation of the statute and that such was the cause of the explosion, and defended upon the theory that the explosion was produced from other causes, and where the jury adopted plaintiff's theory, and where it is not claimed that the evidence was insufficient to take the case to the jury upon her theory held, in the absence of a demurrer to the petition and error in the admission of testimony or in the instructions, the judgment must stand.
Where the issue was whether or not the explosion was caused by reason of a violation of a statute by the master, and, if not, whether or not the servant had assumed the risk, it was not error for the court to refuse to charge that, in addition to the ordinary risks of the employment, the servant, if he knew and appreciated them, assumed such additional risks as arose from the negligence of the master. This for the reason that the servant cannot, as against public policy, waive a compliance with the statute, and for the further reason that the plea of assumption of risk was not available as a defense.
Where plaintiff sues, alleging that deceased was a coal digger, and upon the theory that, as such defendant owed him the duty not to fire shots until after he had left the mine, and defendant defended upon the theory that he was a shot firer, and, as such, it was his duty to remain in the mine until after the shots were fired, but was guilty of contributory negligence in failing to go to a certain place therein prepared by the master for his safety, it was not reversible error for the court to charge upon plaintiff's theory, in effect, that as to such digger it was the duty of defendant not to fire the shots "while the men were engaged in its actual employment and until they, including deceased, had departed from the mine," and upon defendant's theory that he was guilty of contributory negligence, if, as a shot firer he failed to go to said place while the shots were being fired.
Evidence complained of examined, and held to be admissible.
Additional Syllabus by Editorial Staff.
In an action for the death of plaintiff's husband, an instruction to fix the compensation for injuries inflicted on plaintiff by his death, taking into consideration the age of deceased, the number of years he might reasonably have been expected to perform manual labor, and his contribution to the support of plaintiff and her minor children, was not objectionable as failing to limit plaintiff's recovery to pecuniary damages.
An instruction on the measure of damages in an action for the death of plaintiff's husband, if erroneous in failing to limit recovery to pecuniary damages, is harmless, where the judgment is not excessive.
Error from District Court, Latimer County; W. H. Brown, Judge.
Action by Mrs. Ben Coffman against the Great Western Coal & Coke Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Gordon & McInnis, of McAlester, for plaintiff in error.
H. H. Smith, of Shawnee, for defendant in error.
This is an action commenced by the widow of Ben Coffman, defendant in error, in the district court of Latimer county, against the Great Western Coal & Coke Company, plaintiff in error, W. P. Thomas, and Dan Hughes, but later dismissed as to the two latter, to recover damages for personal injury sustained by her husband which resulted in his death. Her amended petition, after alleging the corporate existence of defendant, that at the time of the injury complained of its business was that of mining coal in mine No. 2 in Latimer county, and that said Thomas and Hughes were its superintendent and mine boss, respectively, substantially states that at that time it was the duty of said Thomas, who was in control of the operation of said mine and charged with the duty of directing the details of its management, and of said Hughes, as mine boss, to inspect said mine at intervals and see that the duties imposed by law upon defendant were performed, to the end that said mine be made a safe place for said Coffman to work; that he, on March 31, 1910, was employed in said mine by defendant as a coal digger; that on said day, while so employed and while preparing to leave the mine at about 2 o'clock in the morning, there was a shot fired therein which caused an explosion in the mine, resulting in his death. Plaintiff, inter alia, charges upon information and belief that the explosion was by reason of the negligence of the defendant in permitting poisonous, noxious, and inflammable gas in dangerous quantities to accumulate at the working places in said mine and large quantities of inflammable coal dust to also there accumulate, and in the main slope and at and near its face, and clog the air; that defendant negligently failed to remove or dampen said dust as required by law, and failed to provide, besides other proper appliances, by proper appliance a means of forcing through said mine fresh air in sufficient quantities to dilute, render harmless, and expel the gas and dust therefrom; that by reason of the negligence complained of said mine became and was an unsafe place in which to work, in consequence of which, she says, said coal dust became ignited and exploded said mine and killed her husband, to her damage, etc.
On October 16, 1911, defendant filed motion to require plaintiff to separately state and number her causes of action, and later a motion to strike, which were overruled, whereupon plaintiff amended her petition as stated. After defendant had filed an amended answer and an amendment thereto, in effect a general denial, a plea to the jurisdiction, contributory negligence, and assumption of risk, and plaintiff had replied, in effect a general denial, there was trial to a jury and verdict for plaintiff. After motion for new trial filed and overruled, defendant brings the case here. As there is no merit in the contention that the court erred in overruling the motions aforesaid, and it is not contended that the petition fails to state a cause of action, or that the evidence was insufficient to take the case to the jury on the question of master's negligence, we need only determine whether the court erred in admitting certain evidence or in instructing the jury as hereinafter set forth.
The theory of plaintiff was that defendant was negligent in permitting Coffman to work in the mine without wetting the accumulated coal dust, which had clogged the air, and in failing to inspect the mine for gas, as required by law (Rev. Laws 1910, §§ 3982, 3975), and that such failure and consequent explosion was the proximate cause of the injury. Defendant defended on the theory that it had complied with the law in those respects and had furnished him a reasonably safe place in which to work, and that the explosion was caused by a "windy shot," igniting the coal dust produced and suspended in the air by a "follow shot"; that both were fired by Coffman and another, whom they plead were fellow shot firers; that they were negligent in preparing their shots, and also in failing to go to a place of safety at the time they were fired, and also that Coffman assumed the risk of the employment. The evidence reasonably tends to prove that, at the time he was killed, Coffman was in the employ of the defendant as a coal digger doing contract work, and, on the night he was killed, was working on the night shift with five other diggers in its mine No. 2, near Wilburton. The mine ran into the ground on a slope at an angle of some 37 degrees, and had an open mouth about 5 by 8 feet. The length of the slope was about 1,800 feet, with 12 entries to the rooms, from which the coal was mined, on each side and some distance apart, beginning within a few feet of the mouth. These entries were designated as "first east," "first west," "second east," "second west," etc., and extended on alternate sides down the slope to within some 60 or 80 feet of the face, where they ended with the twelfth east, on which the work of opening it up had progressed some 20 feet at the time of the injury complained of. The coal was conveyed in cars from out these rooms onto a track running the length of the slope and there conveyed in a "trip," consisting of one or more cars coupled together with cable attached, and drawn to the top by steam power located outside and near the mouth of the mine. In every entry down to the twelfth there were abandoned rooms in which the coal dust was not sprinkled, but, with this exception, as far down as the tenth entries there seems to have been no dereliction of duty on behalf of defendant in this particular. From that point down, however, the record discloses, the dust was never sprinkled, but was permitted to accumulate in the rooms and entries, on the walls and timbers, along the slope, and on the track to such an extent that it was ankle deep, and, in places, covered the ties. So flagrant, indeed, was the violation of the statute that a grievance committee of the miners, on some two or three occasions before the explosion, complained to the mine boss and warned him of the danger; but little, if any, heed was paid thereto, and nothing was done towards alleviating the condition by sprinkling, as required by law.
Thus matters stood when, about 6 o'clock on the evening of March 30th, the deceased entered the mine as one of the night shift, consisting, among...
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