The Cherokee and Pittsburg Coal and Mining Company v. Stoop

• Citation: 43 P. 766,56 Kan. 426
• Decision Date: 08 February 1896
• Docket Number: 7807
• Parties: THE CHEROKEE AND PITTSBURG COAL AND MINING COMPANY v. SAMUEL K. STOOP, as Administrator of the Estate of George W. Croxton, deceased
• Court: United States State Supreme Court of Kansas

43 P. 766

56 Kan. 426

THE CHEROKEE AND PITTSBURG COAL AND MINING COMPANY v. SAMUEL K. STOOP, as Administrator of the Estate of George W. Croxton, deceased

No. 7807

Supreme Court of Kansas

February 8, 1896

Decided January, 1896.

Error from Crawford District Court.

ACTION by Samuel K. Stoop, as administrator of the estate of George W. Croxton, deceased, against The Cherokee and Pittsburg Coal and Mining Company. Judgment was rendered for defendant, and from an order granting a new trial, it brings error. The material facts are stated in the opinion, filed February 8 1896.

Judgment affirmed.

A. A Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error.

J. F. McDonald, J. D. Hill, and J. D. McCleverty, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action brought by Samuel K. Stoop, as administrator of the estate of George W. Croxton, deceased, against the Cherokee and Pittsburg Coal and Mining Company to recover damages sustained by the widow and next of kin of George W. Croxton, deceased, for pecuniary loss alleged to have been sustained by them by reason of his death, and which it is alleged was caused by the negligence of the company. The company owned and operated a coal-mine at Frontenac, and the deceased was an employee working in the mine as a coal-miner, and it is alleged that the company negligently permitted the accumulation of combustible and inflammable dust in the mine, which, being communicated with by a blast of powder, caused a general explosion, and, among other casualties, caused the death of George W. Croxton. There is an averment in the petition that the company knew or should have known that the presence and accumulation of dust was a dangerous element in the mine, but, notwithstanding this, it failed to sprinkle the mine, or take other reasonable precautions against danger from this cause. The answer was, first, a general denial, and second, that the deceased came to his death by reason of his own carelessness. The trial resulted in a verdict in favor of the company, and the plaintiff below asked for and obtained a new trial, and one of the grounds for his motion was that the verdict was not sustained by sufficient evidence, and was contrary to law.

It is contended by the company that the action of the court in setting aside the verdict and granting a new trial was an abuse of discretion on the part of the trial court. The testimony of the plaintiff below was to the effect that the company negligently permitted large quantities of coal-dust impregnated with sulphur to accumulate in the mine, and that such coal-dust was combustible and explosive, and, coming in contact with a blown-out shot, caused a general explosion, which destroyed the life of Croxton. On the other hand, the testimony offered in behalf of the company was that the coal-dust was not explosive, and that the explosion in question was occasioned by the careless act of the employees in igniting the powder used by the miners in mining coal.

In view of the fact that the testimony was so conflicting and contradictory there is little left for our determination.

"The granting of a new trial is so much in the discretion of the trial court that the supreme court will not reverse the order of the trial court granting a new trial unless error is clearly established with respect to some pure, simple and unmixed question of law." (Sanders v. Wakefield, 41 Kan. 11, 20 P. 518; City of Sedan v. Church, 29...