Thayer's Estate v. Kitchen

• Citation: 140 S.W. 1052,145 Ky. 554
• Parties: THAYER'S ESTATE v. KITCHEN. [1]
• Decision Date: 28 November 1911
• Court: Court of Appeals of Kentucky

140 S.W. 1052

145 Ky. 554

THAYER'S ESTATE v. KITCHEN. ^[1]

Court of Appeals of Kentucky.

November 28, 1911

Appeal from Circuit Court, Carter County.

Action by George W. Kitchen against the estate of N. Thayer. From a judgment for plaintiff, defendant appeals. Affirmed.

Theobald & Theobald, for appellant.

H. R Dysard, for appellee.

HOBSON C.J.

Section 2731, Kentucky Statutes (Russell's St. § 2469), among other things provides: "The owner, agent or lessee of every coal mine, whether slope, shaft or drift, to which this act applies, shall provide and maintain for every such mine an amount of ventilation of not less than one hundred cubic feet of air per minute per person employed in such mine which shall be circulated and distributed throughout the mine in such a manner as to dilute, render harmless and expel the poisonous and noxious gases from each and every working place in the mine; and no working place shall be driven more than sixty feet in advance of a break-through or airway; and all breakthroughs or airways, except those last made near the working-face of the mine, shall be closed up and made air tight by brattice, trapdoors or otherwise, so that the currents or air in circulation in the mine may sweep to the interior of the excavations where the persons employed in the mines are at work; and all mines governed by this statute shall be provided with artificial means of producing ventilation, such as suction or forcing fans, exhaust steam furnaces, or other contrivances, of such capacity and power as to produce and maintain an abundant supply of air."

Appellants run a coal mine; appellee, Kitchen, is a miner in their service. He brought this suit against them to recover for the poisoning of his system by their failure to properly ventilate the mine where he worked. The proof for him on the trial showed that the air was not circulated and distributed throughout the mine so as to expel the poisonous and noxious gases; that working places were driven more than 60 feet in advance of a break-through; and that the break-throughs, except those last made near the working-face of the mine, were not closed up or made air tight by brattices, trapdoors, or otherwise; so that the place in the mine where he was at work was not properly ventilated, and poisonous gases accumulated there. The furnace was not always kept going; on some days it was fired, and on some days it was not. Kitchen was assigned by the boss to work in a certain room. He had no education. He knew nothing about air or the effect of breathing bad air. He had worked in the mine off and on for 11 years. He worked in this room during January, February, and March of the year 1909. Some time in March his health failed, and soon thereafter he brought this suit to recover for the injury to his constitution by the foul air in the mine in that room. The proof makes it clear that the statute was not complied with. But it is insisted that Kitchen cannot recover because he continued to work there, and so assumed the risk. When the boss placed him in the room, he asked about the furnace being fired, and the boss answered: "We don't need the furnace fired. That hole there will furnish the air, plenty of air." Kitchen while working in this room noticed that when he would come out he would get sick. He also noticed that it gave him a headache. But these were temporary symptoms that passed off after a little and did not alarm him, and he continued to work until by March he got so he could not work. At that time the bad air in the mine had so poisoned his blood as to destroy his strength. The testimony of a physician in the record shows that breathing this poisonous air affects the lungs, kidneys, liver, and stomach. It is very clear from Kitchen's evidence that he knew the air was bad, but that he had no idea that there was danger in it to his constitution; in other words, he knew the physical facts, but he did not know the danger to him from these facts. The court submitted the case to a jury; the defendant offering no evidence. The court, among other things, gave the jury these instructions:

"It was the duty of the defendant to furnish the plaintiff a reasonably safe place in which to work considering the nature and character of the employment, and if the jury believe from the evidence that the defendant negligently permitted poisonous, foul, and polluted air to fill the room where plaintiff was put to work by the defendant, and that defendant knew or by the exercise of ordinary care could have known of such condition of the air in said room in time to have prevented injury to plaintiff, if any there was, and the plaintiff did not know and by the exercise of ordinary care could not have known of the dangerous condition of said air, if it was dangerous, and further believe from the evidence that the defendants, their agents and servants in charge of said mine, negligently failed to perform said duty, and that as a direct and natural result thereof the plaintiff was injured, the jury will find for the plaintiff.

"(5) The court instructs the jury that, if they shall believe from the evidence that the plaintiff so contributed to the injuries complained of by his own acts that but for such contributory negligence on his part the injury would not have occurred, he cannot recover anything for said injuries against the defendants, and the jury will find for them.

"(6) Although the jury may believe from the evidence that plaintiff knew of the foul and impure condition of the air where he was placed to work and of the dangers thereof to himself, yet if they should further believe from the evidence that he gave notice to the defendants' manager in charge of said mine of such conditions of said air, and said manager expressly directed plaintiff to work at said place and assured plaintiff of the safety and purity of the air, the plaintiff had a right to rely on defendants' assurance, if any, and under such conditions defendants cannot

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