Seals v. Whitney
| Decision Date | 04 May 1908 |
| Parties | EVA SEALS, Respondent, v. A. E. WHITNEY et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.
AFFIRMED.
Judgment affirmed.
Thomas Dolan for appellant.
(1) Appellant contends that the earth and rock would confine the fumes of the powder, and that it would so remain until the earth was stirred up in the course of removing it. Much evidence was also to the effect that until the earth in which the powder fumes was confined was stirred up and the fumes liberated into the atmosphere, that an air sail would be of no use as it could not remove the fumes. The sail could only remove fumes that permeated the atmosphere of the shaft, but it was shown that during the interval between Saturday evening and Monday morning all the powder fumes in the atmosphere of the shaft would have gone out of it without a sail. (2) Appellants accordingly asked the court to instruct the jury as follows: "The jury are instructed that unless you believe from the evidence that the powder gases which would be mingled with the earth and rock at the bottom of the shaft, permeating the same, could be removed by a sail without stirring same up, the defendants cannot be held to be negligent in not putting in a sail whether it was the custom to do so or not, and your verdict should be for the defendants. The court refused to so instruct the jury. Appellant claims this was error. Christy v. Hughes, 24 Mo.App. 275; Saxton v. Railroad, 98 Mo.App. 495. (3) From all the testimony, it appears that a reasonably prudent man could not have anticipated any accident from the manner in which the work was conducted as to the time of putting the sail into the shaft. This is the test of negligence; if a reasonably prudent man could not have anticipated the happening, there is no negligence. Nolan v. Shickle, 3 Mo.App. 300; Hisle v. Swift, 78 Mo.App. 39; Boyd v. Graham, 5 Mo.App. 403; Lawless v. Gas Light Co., 72 Mo.App. 679; Stone v. Hunt, 94 Mo. 475; Rickaly v. Boiler Works Co., 108 Mo.App. 130; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Moberly v. Railroad, 17 Mo.App. 535; Warner v. Railway, 178 Mo. 134.
Horace Ruark, Thomas M. Saxton and McReynolds & Halliburton for respondent.
(1) The duty of the employer to furnish the employee at all times a reasonably safe place in which to do the work required of him is not only enjoined by the law governing employer and employee, but is also imposed upon the employer as owner of the premises by the general law for the safety of all persons thereon. Musick v. Packing Co., 58 Mo.App. 329; Zellars v. Water & Light Co., 92 Mo.App. 117. (2) And is required not to expose his servant to needless hazard as to the place where the work is prosecuted or the manner of its performance, and whether it be machinery the servant is to apply, or whether it be the place or the manner of doing the work, it is the duty of the master to carefully protect the servant. Halliburton v. Railroad, 58 Mo.App. 33; Knight v. Lead & Zinc Co., 57 Mo.App. 541, 91 Mo.App. 574. (3) It is the duty of the master to protect his servant against dangers which the master might have anticipated by the exercise of ordinary care as well as against those known to him. Rogers v. Printing Co., 103 Mo.App. 683. (4) It is the duty of the master to warn and instruct his servants as to defects and dangers of which he knows, or ought in the exercise of reasonable care and diligence to know, and of which the servant has no knowledge actual or constructive. 26 Cyc. 1165, par. D and note 97, p 1166; Deweese v. Manufacturing Co., 128 Mo. 423; Deweese v. Manufacturing Co., 54 Mo.App. 476; Rodney v. Railroad, 127 Mo. 689; Dowling v Allen, 74 Mo. 16; Hysell v. Swift, etc., Co., 78 Mo.App. 44; Girard v. Wheel Co., 46 Mo.App. 110; Nickell v. Paper Stock Co., 95 Mo.App. 231. (5) Independent of statute it is held that it is the duty of mine employer to warn and it is negligence for the master to fail to warn a servant unacquainted with the fact, that a mine contains impure air or gas, and the master is responsible in damages for failure to perform this duty in case injury results. White, Personal Injuries in Mines, sec. 373; Strahlendorf v. Rosenthal, 30 Wis. 674; Stone Co. v. Mooney, 61 N. J. L. 263; Coal Co. v Phillips, 39 Ill.App. 376; Musgrave v. Coal Co. (Iowa), 61 N.W. 227; Coal Co. v. Berberick, 94 F. 329; Gold Mining Co. v. Flaherty, 111 F. 312; Coal & Mining Co. v. Jones, 87 S.W. 440; Andricus v. Coal Co., 90 S.W. 233; Welch v. Iron Works, 57 A. 88.
--Plaintiff sues for damages for the death of her husband which she alleges was caused by the negligence of defendants, mining partners. The principal questions urged on our attention by defendants, who brought the cause here by appeal, arise from the contention that at the close of the evidence, the jury should have been directed by the court to return a verdict in their favor.
The facts presented by the evidence introduced by plaintiff are as follows: Monday morning, August 20, 1906, plaintiff's husband, Jesse Seals and her brother, Shed Shuey, were employed by defendants to work as miners in sinking a prospect shaft in mining land owned by defendants in Newton county. Seals was twenty years old, Shuey twenty-eight. Both were practical miners and neither had worked in that shaft before. The shaft was sixty-eight feet deep and had penetrated into hard rock which, to be properly loosened, required explosions of heavy charges of dynamite. The last work done on the preceding Saturday was the firing of a shot of such character in the bottom of the shaft. Between that event and the time when Seals and Shuey were ordered by defendant, Whitney, the superintendent of the mine, to go down in the shaft, no effort was made to remove the noxious gases liberated by the explosion. The men did not know when the last shot had been fired, but before going down into the shaft, Shuey asked Whitney, in the presence of Seals, if he had "ever been bothered with air" (meaning poisonous gases). Whitney replied he had not. Thus assured, the men descended to the bottom and began the work of loading the tub with the materials to be removed. Whitney stationed himself at the top and performed the duties of hoister. The hoist was operated by horsepower and the tub used was small and shallow, about fourteen inches deep. A recent rain had caused some surface water to collect in the bottom of the shaft. Shuey first went down and, while descending, lighted matches to test the air, and found they would burn. He did not detect the presence of any foul gas and set to work filling the tub with water and sending it to the top. After the third load had been sent up, Seals came down, and they filled the tub partly with water and partly with solid substance. At this time, Shuey first felt the effects of poisonous gas and immediately called up to Whitney to send down the "sail"--a ventilating apparatus consisting of a canvas pipe eight or ten inches in diameter, designed to extend from the top to the bottom of the shaft and to set the air to circulating by means of a burning lamp placed in the bottom end of the pipe. Shuey expected to send away the noxious vapor by this device. Whitney promptly lowered the "sail" and Shuey lighted the lamp. Then he said to Seals, "You get in and go up when the tub comes down; I'm all in." Seals replied, "I am, too," and sat down. At this, Shuey became unconscious. Obtaining no response to his calls to the men and hearing them breathing hard, Whitney became concerned for their safety and raised an alarm. Miners gathered and one of them volunteered to attempt a rescue. He was lowered in the tub to the bottom, found Seals unconscious, placed him in the tub and started up with him, but when about half of the ascent had been accomplished, the unconscious man was seized with a convulsive spasm (called by the miners a "strut"), and fell to the bottom. The would-be rescuer, himself affected by the poison, went on to the top. A larger tub was procured and another miner went down. First, he brought up Shuey, who was still living, and who finally recovered, and then returned and brought up the dead body of Seals.
It is conceded that Seals and Shuey were overcome by inhaling poisonous gas which both parties appear to think was generated by the explosion and, therefore, was not what the miners ordinarily call "bad air" (carbonic acid gas). The witnesses say that where the latter gas is present in sufficient quantity to destroy human life, it will extinguish combustion immediately, and the fact that the matches and lamp would burn is convincing that the gas the men inhaled was the product of powder, since such gas may exist in deadly quantity and still the air with which it is mixed will support combustion. Unlike carbonic acid gas, its presence ordinarily will be disclosed by its odor and the effect on a person inhaling it. That it was not detected by Seals and Shuey in the present instance in time for them to escape from the shaft probably was due to the fact that when Shuey first began to work, the air surrounding him was not impregnated with a dangerous quantity, and it was not...
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