Princeton Coal Mining Co. v. Lawrence

• Decision Date: 24 February 1911
• Docket Number: No. 7,170.,7,170.
• Citation: 93 N.E. 1032,47 Ind.App. 217
• Parties: PRINCETON COAL MINING CO. v. LAWRENCE.
• Court: Indiana Appellate Court

47 Ind.App. 217

93 N.E. 1032

PRINCETON COAL MINING CO.

v.LAWRENCE.

No. 7,170.¹

Appellate Court of Indiana, Division No. 2.

Feb. 24, 1911.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Action by Josie Lawrence against the Princeton Coal Mining Company. From a judgment for plaintiff, defendant appeals. Transferred to Supreme Court.

Embree & Embree, for appellant. J. M. & S. L. Vandeveer and J. W. Brady, for appellee.

ADAMS, J.

Appellee brought this action under section 27 of the coal mining act, approved February 28, 1905 (Acts 1905, pp. 65, 80), as amended by the act of 1907 (Acts 1907, p. 253), to recover damages occasioned by the death of her husband, Solomon Lawrence, through the alleged negligence of appellant.

The complaint upon which the cause was tried is in one paragraph, and shows that Solomon Lawrence was a shot firer in appellant's coal mine; that on the 8th day of January, 1908, while in the line of his duties and while using due care and caution, he was instantly killed. The particular negligence charged is that at the time of the death of said Lawrence, and for six months prior thereto, the entries of appellant's mine were so dry that the air became charged with coal dust, and that the appellant carelessly and negligently and with full knowledge thereof permitted and allowed in all of said entries large quantities of fine, dry, dangerous, and explosive coal dust to accumulate, and willfully and negligently omitted and neglected to regularly and thoroughly sprinkle said entries; that the shot fired by said Lawrence did not blast the coal, but was discharged through the outer opening of the hole in which said shot was placed, and that fire was discharged into the air, resulting in an explosion of the coal dust, and by such explosion said Lawrence was killed. Many other facts are set out in the complaint, but there is no averment that notice was ever given by the inspector of mines to appellant to sprinkle the mine in which deceased worked. The sufficiency of the complaint is questioned by demurrer. Other errors are assigned, but need not be considered in this opinion.

The right to recover in this case clearly depends upon the act of February 28, 1905, and the complaint states a cause of action under that act. Section 11 of said act provides in part: “In case the roadways or entries of any mine are so dry that the air becomes charged with dust, such roadways or entries shall be regularly and thoroughly sprinkled. And it shall be the duty of the inspector to see that this provision is carried out.” It is contended by the appellant that the part of the act of 1905, supra, which relates to the sprinkling of mines, was repealed by section 12 of the act of March 9, 1907 (Acts 1907, p. 351). This section reads: “The inspector of mines shall have power in his discretion to order the sprinkling of any coal mine or part of mine by notice in writing to the operator thereof, or person in charge of the same, and after receiving such notice it shall be unlawful for any person to act in violation thereof and to omit such sprinkling. Copies of any notices given hereunder shall be posted at the mine entrance by the inspector of mines.” Section 21 of the act of 1907 declares that “the provisions of this act shall be cumulative of other laws upon the subject of coal mining; provided, however, that all laws or parts of laws in conflict...