Hughes v. Oregon Imp. Co.

• Decision Date: 05 December 1898
• Citation: 20 Wash. 294,55 P. 119
• Parties: HUGHES et al. v. OREGON IMP. CO.
• Court: Washington Supreme Court

55 P. 119

20 Wash. 294

HUGHES et al. v. OREGON IMP. CO.

Supreme Court of Washington

December 5, 1898

Appeal from superior court, King county; O. Jacobs, Judge.

Action by Mary Hughes and others against the Oregon Improvement Company to recover for the death of plaintiffs' intestate. There was a judgment for plaintiffs, and defendant appeals. Reversed.

Dunbar J., dissenting.

INJURY TO EMPLOYE--CONTRIBUTORY NEGLIGENCE--FELLOW SERVANTS.

1. After a mine caught fire, a miner therein was immediately requested to leave, which he refused to do. It was possible for him to have either left the mine, or gone to a place of safety; and, after a lapse of a longer time than it would have taken for him to do so, a ventilating fan was shut down and a tunnel door was opened, permitting the smoke to enter the compartment in which he was, thereby suffocating him. Held, that he was guilty of contributory negligence.

INJURY TO EMPLOYE--CONTRIBUTORY NEGLIGENCE--FELLOW SERVANTS.

2. A gas tester, whose duty it is to ascertain the existence of any noxious gases in the mine in places where miners are required to work, and to warn them thereof, and who has no other authority, is a fellow servant of the miners.

INJURY TO EMPLOYE--CONTRIBUTORY NEGLIGENCE--FELLOW SERVANTS.

3. A person located on the outside of a mine, and operating a fan by which the mine is ventilated, and possessing no other authority, is a fellow servant of the miners.

INJURY TO EMPLOYE--CONTRIBUTORY NEGLIGENCE--FELLOW SERVANTS.

4. An outside or 'top boss' of a coal mine, who has charge of receiving the coal when brought to the surface, and of lowering material for the miners into it, without authority to employ or discharge men or to take charge of any department, is likewise such fellow servant.

INJURY TO EMPLOYE--CONTRIBUTORY NEGLIGENCE--FELLOW SERVANTS.

5. Where fire broke out in a mine, and the exact location thereof was unknown to persons on the outside, and if located in one place, it became necessary, for the safety of the miners inside, to operate a ventilating fan, and, if located in another, the fan was required to be shut down, and a person employed about the mine came running to the fan house apparently from the mine, and asked the fan to be shut down and immediate action was required, the mine owner was not liable for the shutting down of the fan by the superintendent, when it should have been kept running, it being a mere error of judgment.

INJURY TO EMPLOYE--CONTRIBUTORY NEGLIGENCE--FELLOW SERVANTS.

6. A fire of unknown origin in a mine, suddenly started in a place inspected the evening before, not the result of spontaneous combustion or any act imputable to the mine owner, is not of itself proof of his negligence.

INJURY TO EMPLOYE--CONTRIBUTORY NEGLIGENCE--FELLOW SERVANTS.

7. The negligent shutting down by a mine owner's servants of a ventilating fan in their charge is not proof of a mine owner's negligence in selecting of retaining such servants, in the absence of proof that they had ever failed in the discharge of their duty before, or that the mine was at any time insufficiently ventilated.

Burleigh & Piles, for appellant.

John E. Humphries, William E. Humphrey, and Edward P. Edsen, for respondents.

ANDERS J.

At the time hereinafter mentioned, the Oregon Improvement Company, appellant herein, was the owner and operator of a coal mine at Franklin, in this state. The mine seems to have been worked in the customary manner, and in accordance with the provisions of our statute. It consisted of seven levels, from 300 to 350 feet apart. It was provided with four separate shafts, each of which afforded means of egress from the mine. The main slope extended from the surface of the ground to the sixth level, and the sixth and seventh levels were connected by another shaft. The main slope was used for raising the coal by means of cars operated by a steam engine, and for lowering supplies into the mine, and was also the usual place where the miners and other employés went into and out of the mine. The sixth level extended both north and south from the bottom of the main slope. This level had been driven north to a considerable distance, and this space was divided into rooms or breasts, each being 50 feet from center to center, and designated by a number. These breasts were separated from each other by a partition of solid coal 20 feet thick, so that the working space in each one was 30 feet wide. This gangway or level extended north as far as breast No. 87, and at that point it was connected with an air course which extended to the foot of the air shaft, which was provided with a stairway by which the men could enter or leave the mine. This portion of the mine was ventilated by a fan situated at the top of the air shaft at a point about 350 feet higher than the entrance to the main slope. The breasts or rooms along the gangway extended back in the coal vein to the crosscut, which was parallel with the gangway, and about 30 feet distant from it. The air shaft was connected with the gangway of the sixth level by a tunnel about 153 feet in length, through the intervening rock, which was known as the 'rock tunnel.' At a point where it reached the gangway or level, and at or about chute 49, there was a door called the 'rock tunnel door,' which was placed there for the purpose of preventing the air from passing from the gangway through the tunnel directly to the air course when the fan was in operation. When the fan was in motion and the rock tunnel door closed, the air passed down the main slope along the gangway to the north end thereof, and then through the air course, and into the rooms where the miners were at work, thence out through the air shaft by way of the fan house. At about 20 minutes after 11 o'clock in the forenoon on August 24, 1894, one of the boys engaged in driving mules and hauling coal along the gangway of the sixth level discovered a fire in the chute of breast 62, about halfway from the gangway to the crosscut. He immediately notified one John Schneider, who thereupon instructed this boy and several others who were working in the mine to notify the miners to leave the mine, as it was on fire. At the time of the fire, the respondents' intestate, Evan Hughes, was working in the crosscut, between breasts 78 and 79, with one William Secor. An action was brought for the death of Secor, and the case is reported in 15 Wash. 35, 45 P. 654. Hughes failed to leave the mine, as requested, and was suffocated and killed by the smoke originating from the fire, together with 36 other miners. This action was brought by his widow and children to recover damages for his death. Several acts of negligence were alleged in the complaint, but plaintiffs at the trial principally relied upon the allegations that the fan was negligently shut down, and the rock tunnel door opened, during the fire, thus causing the smoke to enter the gangway and smother the deceased. The case was tried to a jury, and a verdict and judgment were rendered for the plaintiffs, and the defendant appealed. Numerous errors are assigned and relied upon by the appellant for a reversal of the judgment, but, under the view we take of the case, it is necessary to consider but one of them.

At the close of the testimony in the case, the appellant moved the court to take the cause from the jury, and to enter judgment in its favor, on the ground that there was not sufficient evidence to warrant a verdict against appellant, which motion was denied by the court, and an exception duly taken. The evidence showed, at the conclusion of all the testimony in the case, that the fire broke out in the mine at 11:20 or 11:25; that all the men in the mine were immediately notified of the fire, and directed to come out of the mine; that the men furthest in the mine could have gone to a point south of the rock tunnel door, a place of perfect safety, inside of 10 minutes; that the fan was shut down about 12:05, either by McDonald, who operated the fan under the direction of Ramsey and Smalley, or by the direction of the assistant superintendent having charge of the mine; that, prior to that time, the rock tunnel door was opened by John Johns, one of the gas testers on the sixth level, who acted upon the request of the miners themselves; that some 15 of the miners, some of whom were further north from the fire and the rock tunnel door than the deceased, Hughes, was, escaped from the mine without injury; that smoke was first...