Vandalia Coal Co. v. Yemm

Decision Date10 June 1910
Docket NumberNo. 21,556.,21,556.
Citation92 N.E. 49,175 Ind. 524
PartiesVANDALIA COAL CO. v. YEMM.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Putnam County; J. M. Rawley, Judge.

Action for personal injuries by William Yemm against the Vandalia Coal Company. Judgment for plaintiff for $10,000, and defendant appeals. Affirmed.Lamb & Beasly, U. Z. Wiley, T. C. Grooms, S. M. McGregor, and Chas. E. Barrett, for appellant. S. A. Hays, G. A. Knight, A. W. Knight, and B. F. Watson, for appellee.

MYERS, J.

Appellee commenced this action in the Clay circuit court against appellant for damages for alleged negligence resulting in his injury. The venue was changed to Putnam county, where the cause was tried.

The complaint is in two paragraphs. The first paragraph alleges that appellant was a corporation operating a coal mine, wherein about 250 men were employed. The mine consisted of a vertical shaft from the bottom of which was a main entry extending westwardly many hundred yards, from which cross-entries were turned off to the north, and from these cross-entries, ten in number, working or mining rooms were turned off by extracting the coal vein. Plaintiff was working in the ninth north cross-entry on December 5, 1906. The negligence charged in this paragraph is the failure to sprinkle the roadway or entry to the shaft, alleging that the dust had become a depth of from two to six inches in the entry, and had not been sprinkled for a period of many weeks, and had for six months been permitted to become so dry that the air became and was charged with dust to such an extent as to render said roadways and entries dangerous for use, and likely to create what is known as dust explosion at any time. It is alleged that appellant had notice of these conditions of fact, and that, on attempting to leave his work at its close, appellee was going along the usual and ordinary way to the shaft, when suddenly, and without warning, a terrific explosion of said dust occurred in the roadway and entries, enveloping him in a sheet of flame and greatly injuring him; that the concussion and fire which resulted from putting off shots or blasting coal in the mine in the customary manner well known and recognized and acted upon by miners and by appellant, acting upon the air in the roadways and entries charged with dust, caused the explosion. The paragraph counts upon a liability for failure to sprinkle the roadways as required under the last clause of section 8579, Burns' Ann. St. 1908.

The second paragraph is practically the same as the first, except that the cause of the explosion is alleged to have been the negligent and careless act of certain other workmen in the mine in violation of the statutory mining laws in firing “illegal shots,” in the matter of drilling and putting blasts in improper places, and that these shots acting upon the dust-laden entries caused the explosion of the dust, and that he was injured by the combined negligence of appellant in failing to sprinkle the roadways, and the miners in putting in the irregular shots or blasts. As the answers to the interrogatories show that the injury resulted from “dust explosion” and the judgment is based upon the first paragraph of the complaint, it will not be necessary to consider the second paragraph.

Appellant's contention as to the insufficiency of the first paragraph of complaint is based upon the claim that the sprinkling clause at the close of section 8579, supra, has no application to this case, for the alleged reason that the act was passed solely for the ventilation of coal mines, and that the clause cannot be considered for any purpose. Reliance is placed principally upon the case of Indiana, &, etc., Co. v. Neal (1906) 166 Ind. 458, 77 N. E. 850, in which it was held that the provisions of section 18, Acts 1891, p. 61, c. 49, construed in the light of section 2, Acts 1885, p. 66, c. 34, in regard to opening and closing doors used in ventilating mines, were designed to prevent interference with the circulation of air, and not designed to provide aid for drivers, in passing through them. The present statute was not in force when that case was decided. The history of this character of legislation beginning with 1885 (Acts 1885, p. 65, c. 34), enlarged in 1891 (Acts 1891, p. 57, c. 49), and again enlarged in 1905 (Acts 1905, p. 65, c. 50; Burns' Ann. St. 1908, § 8569 et seq.), discloses an increasing interest in legislation for the safety of the lives and limbs, and preservation of the health of miners. The provision in regard to sprinkling mines first appeared in the act of 1905. Section 8579, Burns' Ann. St. 1908. The language is: “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.” This provision is a part of the same section in which provision is made for ventilating mines, but throughout the section the duties of the inspectors are declared, and, when we come to the clause respecting sprinkling, there is again the specific duty of the inspector in regard to that provision, thus emphasizing the duty of the mine operator. It is a provision ingrafted upon section 16 of the act of 1891, which embraced the subject of ventilation. It may be conceded that the allaying of dust is in the interest of health, and also that it may reasonably be said to be a proper subject of ventilation, but it will be noted that the ventilation the statute contemplates is procuring fresh air, and that is not necessarily inconsistent with the continued existence of dust, and there is no provision for removing the dust, nor do we assume that it is practicable to do so, but we are bound to presume in face of the legislative requirement that sprinkling is practicable and efficient. But the complaint alleges that, by reason of the negligent failure to sprinkle the roadways and entries, they had been permitted to remain and be so dry that the air therein became and was so charged with dust to such an extent as to render said roadways and entries dangerous for use, and likely to create what is known as ‘dust explosion’ at any time,” and that the concussion and fire from the blasting, acting upon this dust-charged air, caused the explosion of the dust, and that the explosion was caused by this neglect. Here is a charge not only of negligence, but that such negligence was the proximate cause of the injury. Even if it were conceded that the sprinkling is a part of the provision for ventilation, still, if the neglect of this duty was the proximate cause of the explosion, a cause of action would be stated. As we read the clause, however, it is a distinct statutory duty, disconnected from the subject of ventilation proper, and the more is this true under a complaint which charges that such a condition is in itself dangerous, and we must assume that the Legislature so viewed it, and had a purpose in view in its enactment, and the purpose was to provide against this particular element of danger. Certainly it is as specifically enjoined to be done as any other thing embraced in the statute, and it is required, irrespective of the subject of ventilation, and, if so, was manifestly enacted for the benefit of appellee and others employed in the mine, and that is the test. Indiana &, etc., Co. v. Neal, supra, and cases cited. But the above case lends no support to the contention of appellant that the sprinkling clause has no application.

It is next urged that neither paragraph of complaint is sufficient because it does not show the failure to sprinkle the mine was the proximate cause of the explosion which caused the injury to appellee. It is expressly averred in the first paragraph “that, if said defendant company had performed its duty in regularly and thoroughly sprinkling said dust on and before the date of the explosion, the accident and injuries herein complained of would not and could not have occurred, and that the same did occur solely and proximately by reason of its neglect in that behalf.” The fact could hardly be more directly stated.

It is next urged that “if the servant with full knowledge of the facts and understanding the risks occasioned thereby, in the absence of any promise by the master to remedy the same, consents to and remains in the master's employ, then he voluntarily incurs such increased risks.” The rule is that, where there is a neglect of a statutory duty the assumption of risk does not apply by continuing in the service, and it is not necessary to negative knowledge of the danger. Inland Steel Co. v. Yedinak, 172 Ind. 423, 427, 87 N. E. 229;Cleveland, etc., Co. v. Powers (1909) 89 N. E. 485;Ft. Wayne, etc., Co. v. Roudebush, 89 N. E. 369;U. S. Cement Co. v. Cooper, 172 Ind. 599, 88 N. E. 69;Miami Coal Co. v. Kane (App.) 90 N. E. 13;Cook v. Ormsby (App.) 89 N. E. 525;Chandler Co. v. Sams (1908) 170 Ind. 623, 85 N. E. 341;Chicago, etc., Co. v. Lawrence (1906) 169 Ind. 319, 79 N. E. 363, 82 N. E. 768;Green v. American, etc., Co., 163 Ind. 135, 71 N. E. 268;Hymera Coal Co. v. Mahan (App.) 88 N. E. 108;Nickey v. Dougan, 34 Ind. App. 601, 73 N. E. 288;American Co. v. Clark, 32 Ind. App. 644, 70 N. E. 828. It is averred that blasting in the mining of coal is necessary and the customary, well-recognized, and well-known practice, and so acted upon by appellant and the miners, but that the accident would not, and could not, have occurred but for the air-laden dust which exploded in the ordinary course of business of mining; hence the dust must be regarded as the efficient or proximate cause of the explosion and injury. Chicago, etc., Co. v. Dinius (1908) 170 Ind. 222, 84 N. E. 9, and cases cited. It is the contention of appellant that the injury did not occur from an explosion of coal dust, but from the use of excessive quantities of blasting powder in too quick succession, and that there...

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