Sans Bois Coal Co. v. Janeway
| Decision Date | 11 November 1908 |
| Parties | SANS BOIS COAL CO. v. JANEWAY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where from the facts shown by the evidence, although undisputed reasonable men might draw different conclusions respecting the question of negligence or contributory negligence, such questions are properly for the jury.
[Ed Note.-For other cases, see Negligence, Cent. Dig. §§ 293-297; Dec. Dig. § 136. [*]]
It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.
[Ed Note.-For other cases, see Negligence, Cent. Dig. §§ 293-297; Dec. Dig. § 136. [*]]
If a person engaged as a miner for a coal company, who has knowledge of defects in appliances necessary to force pure air into the mines and to dilute and render harmless and expel therefrom noxious and poisonous gases, gives notice thereof to the proper officer, and is promised that such defect shall be remedied, his continuance in such employment in the well-grounded belief that such appliances will be put in proper condition, within a reasonable time, does not necessarily, or as matter of law, make him guilty of contributory negligence. It is a question for the jury whether in relying on such promises, and continuing in the employment after he knew of such defects, he was in the exercise of due care.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1097; Dec. Dig. § 289. [*]]
"Assumption of risk" is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant's duty shall be at the servant's risk.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 538; Dec. Dig. § 203. [*]
For other definitions, see Words and Phrases, vol. 1, pp. 589-591; vol. 8, pp. 7584, 7585.]
The purpose of Act Cong. July 1, 1902, c. 1356, 32 Stat. 631, requiring the owners or managers of every mine to provide an adequate amount of ventilation and proper appliances or machinery to force air through such mine to the face of each and every working place, so as to dilute and render harmless, and expel therefrom, the noxious and poisonous gases, was to protect the employés of such owners or managers from a well-known danger of their service, the risk from which, from the nature of their employment, they were compelled to assume; and, although an employé impliedly waives a compliance with the statute, and agrees to assume the risk from defective appliances by continuing in the service, a court will not recognize or enforce such agreement. To permit owners or managers of mines to avail themselves of such an assumption of risk by its employés would be, in effect, to enable them to nullify a penal statute, and that is against public policy.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 583; Dec. Dig. § 217. [*]]
Error to the United States Court for the Central District of the Indian Territory, sitting at Poteau; Wm. H. H. Clayton, Judge.
Action by J. F. Janeway against the Sans Bois Coal Company. Judgment for plaintiff, and defendant brought error to the Court of Appeals of the Indian Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma under the enabling act and schedule of the Constitution. Affirmed.
Charles E. Warner and Harry P. Warner, for plaintiff in error.
Wiley H. Jones and Russer V. Varner, for defendant in error.
This was an action for personal injuries, brought by the defendant in error, plaintiff below, against the Sans Bois Coal Company, plaintiff in error, defendant below. The complaint contained two counts. The first alleged, in substance, that on the 24th day of July, 1904, the plaintiff was in the employ of defendant as a coal digger in its coal mine No. 2, near McCurtain, Ind. T., and was engaged in driving the air course; that when he went into the third north entry, where he was to work, he found, on reaching the dip switch at a point about 45 feet from the face of said entry, "dead marks," which indicated to him that it was dangerous to go further, and he, therefore, stopped and awaited the arrival of the fire boss, who was alleged to be the agent and vice principal of the defendant; that the fire boss brushed out the gas from the working place of plaintiff and that of his companions almost opposite him, which were separated by a thin wall, 3 1/2 to 4 feet thick, and removed the "dead marks," and told plaintiff and those with him that it was all right, to go to work, which they did, and continued until noon, when an explosion occurred in the third north entry from the gas in said entry becoming ignited from the lamp of his companions working near, in said entry, or from some other cause; that at a point 3 or 4 feet from the face of the entry there was a break through the wall into the air course, something, like 2 feet one way and 3 feet the other, and when the explosion occurred plaintiff was working in front of said break, in performing his duty, and the fire rushed through said break, causing the injuries complained of. The acts of negligence on the part of the defendant are alleged to be, in substance, that it failed to furnish and provide an adequate amount of ventilation of pure air, or to provide proper or suitable appliances to force pure air to the face of each and every working place so as to dilute and render harmless, and expel therefrom, the noxious or poisonous gases, but negligently, carelessly, and wantonly permitted said gases to accumulate in dangerous quantities in the working places of said mine, and in the third north entry and air course, and negligently, carelessly, and wantonly failed and refused to furnish and provide a curtain or "brattish" at the dip switch, at or near where the "dead marks" were placed, so as to force the pure air to the face of the third north entry and air course, and to the working place of plaintiff and his companions. The second count was substantially in the language of the first, with the additional allegations, in substance, that a day or two prior to said explosion the plaintiff and his companions made a complaint to C. R. Fisk, the pit boss, who was averred to be agent and vice principal of the defendant, as to the failure to provide said curtain or brattish, and were assured by him that the situation was not dangerous; that there was no danger, and a suitable curtain would be provided, which assurance and promises were also made by the fire boss, and that, relying on such promises and assurances, plaintiff continued his work; that the presence of gases in dangerous quantities and failure to provide air, etc., and the curtain or brattish, were known to defendant, or should have been known to it. The answer of defendant denied specifically every material allegation in the complaint, except that plaintiff was an employé of defendant engaged in digging coal, and further expressly averred and interposed the defense of negligence of fellow servants, contributory negligence of plaintiff, and knowledge on the part of plaintiff, and assumption of risk. Upon the issues thus joined the cause was tried to a jury, which found a verdict for the plaintiff in the sum of $750, upon which judgment was duly rendered, whereupon the defendant prosecuted error to the Court of Appeals of the Indian Territory, and the cause was transferred to this court, under the terms of the enabling act and schedule of the Constitution.
Counsel for plaintiff in error assigns various errors, but argues them all under three subheads, as follows: First. The defendant was not shown to have produced the explosion in which plaintiff was injured. Second. The contributory negligence of Janeway was the approximate cause of the explosion. Third. The plaintiff knew that danger of gas was imminent, and that the dip switch was not curtained. Therefore he assumed the risk. The only act tending to establish negligence on the part of the defendant was its failure to put the curtain or brattish across the dip switch and this omission was conceded by the defendant. The plaintiff contended below that this was a violation of a section of the United States statute, which provides: "That the owners or managers of every coal mine shall provide an adequate amount of ventilation of not less than eighty-three and one third cubic feet of pure air per second, or five thousand cubic feet per minute for every fifty men at work in said mine, and in like proportion for a greater number, which air shall by proper appliances or machinery be forced through such mine to the face of each and every working place, so as to dilute and render harmless and expel therefrom the noxious or poisonous gases." Act July 1, 1902, c. 1356, 32 Stat. 631. The court instructed the jury that this provision imposed upon the company the duty of keeping the mine ventilated and keeping a sufficient amount of air passing through the mine to dilute and render harmless, and expel therefrom, the noxious and poisonous gases, to so intermingle and mix it with the current of air so that it may be carried off, and that the mine shall be relieved from standing gas. And further instructed the jury that: "The only question before it to determine in this case is as to whether or not the company was negligent in not putting this brattish across the dip switch, if in the construction of same it was necessary to place that brattish there in order to carry the air through the part of the mine where the explosion occurred; if that were necessary, then the company should have done so, if it were not necessary, then, although some air...
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