Vandalia Coal Company v. Yemm
| Decision Date | 10 June 1910 |
| Docket Number | 21,556 |
| Citation | 92 N.E. 49,175 Ind. 524 |
| Parties | Vandalia Coal Company v. Yemm |
| Court | Indiana Supreme Court |
Rehearing Denied April 28, 1911, Reported at: 137 Ind. 524 at 541.
From Putnam Circuit Court; J. M. Rawley, Judge.
Action by William Yemm against the Vandalia Coal Company. From a judgment on a verdict for plaintiff for $ 10,000, defendant appeals.
Affirmed.
Lamb & Beasley, U. Z. Wiley, T. C. Grooms, S. M. McGregor and Charles E. Barrett, for appellant.
S. A Hays, G. A. Knight, A. W. Knight and B. F. Watson, for appellee.
Appellee commenced this action against appellant in the Clay Circuit Court, 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 250 men were employed. The mine consisted of a vertical shaft, from the bottom of which a main entry extended westwardly many hundreds of yards, from which ten cross-entries were turned off to the north, and from these cross-entries mining rooms were turned off by extracting the coal veins. Plaintiff was working in the ninth north cross-entry on December 5, 1906. The negligence averred in this paragraph is the failure to sprinkle the roadway or entry to the shaft. The complaint alleges that the dust had become from two to six inches deep in said entry, had not been sprinkled for a period of many weeks, and for six months had been permitted to become so dry that the air was charged with it to such an extent as to render said entry dangerous for use, as said dust was likely at any time to create what is known as a dust explosion. It is alleged that appellant had notice of these conditions; that on attempting to leave his work he was going along the usual and ordinary way to the shaft, when suddenly and without warning a terrific explosion of said dust occurred in said entry, enveloping him in a sheet of flame, and greatly injuring him; that the concussion and fire which resulted from firing shots or blasting coal in the mine in the customary manner, well known, recognized and acted upon by miners and by appellant, acting upon the dust-charged air in said entry caused the explosion. The paragraph counts upon a liability for failure to sprinkle the roadways, as required under the last clause of § 8579 Burns 1908, Acts 1905 p. 65, § 11.
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 acts of certain other workmen in the mine, who, in violation of the statutory mining laws, fired "illegal shots," drilled holes and put in blasts in improper places, and that these shots, acting upon the dust-laden entries, caused the explosion of dust, and that appellee was injured by the combined negligence of appellant in failing to sprinkle the roadways, and of the miners in putting in the irregular shots or blasts.
As the answers to the interrogatories show that the injury resulted from a "dust explosion," and the judgment is based upon the first paragraph of the complaint, it will not be necessary to consider the second paragraph.
Appellants contention as to the insufficiency of the first paragraph of complaint is based on the claim that the sprinkling clause at the close of § 8579, supra, has no application to this case, for the reason that the act was passed solely for the ventilation of coal mines, and that the clause cannot be considered for any other purpose. Reliance is placed principally upon the case of Indiana, etc., Coal Co. v. Neal (1906), 166 Ind. 458, 77 N.E. 850, in which it was held that the provisions of § 7478 Burns 1901, Acts 1891 p. 57, § 18, construed in the light of § 7443 Burns 1901, Acts 1885 p. 65, § 2, 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. The present statute was not in force when that case was decided. The history of this character of legislation, beginning with 1885 (Acts 1885, supra), enlarged in 1891 (Acts 1891, supra), and again in 1905 (Acts 1905, supra) discloses an increasing interest in legislation for the safety of the lives and limbs, and the preservation of the health of miners. The provision in regard to sprinkling mines first appeared in the act of 1905 (§ 8579, supra). The language is as follows: This provision is a part of the same section in which provision is made for ventilating mines, but throughout the section the duties of 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 engrafted upon section sixteen of the act of 1891 (Acts 1891 p. 57, § 7476 Burns 1901), which embraced the subject of ventilation. It may be conceded that allaying the 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 that of procuring fresh air, and that is not necessarily inconsistent with the continued existence of dust. 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. 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 as to render said roadways and entries dangerous for use, and likely to create, at any time, what is known as a 'dust explosion,'" 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 alleges that such a condition is in itself dangerous. We must assume that the legislature so viewed it, and had a purpose in view in enacting the statute, and that 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. It is required, irrespective of the subject of ventilation; and this being so, it was manifestly enacted for the benefit of appellee and others employed in the mine. That is the test. Indiana, etc., Coal Co. v. Neal, supra, and cases cited. The case last cited 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 that 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, by 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 they 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 them, consents to remain in the employ of the master, 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 (1909), 172 Ind. 423, 87 N.E. 229; Cleveland, etc., R. Co. v. Powers (1909), 173 Ind. 105, 88 N.E. 1073; Fort Wayne, etc., Traction Co. v. Roudebush (1909), 173 Ind. 57, 88 N.E. 676; United States Cement Co. v. Cooper (1909), 172 Ind. 599, 88 N.E. 69; Miami Coal Co. v. Kane (1910), 45 Ind.App. 391, 90 N.E. 13; Cook v. Ormsby (1910), 45 Ind.App. 352, 89 N.E. 525; Chandler Coal Co. v. Sams (1908), 170 Ind. 623, 85 N.E. 341; Chicago, etc., R. Co. v. Lawrence (1907), 169 Ind. 319, 79 N.E. 363; Green v. American Car, etc., Co. (1904), 163 Ind. 135, 71 N.E. 268; Hymera Coal Mining Co. v. Mahan (1909), 44 Ind.App. 583, 88 N.E. 108; Nickey v. Dougan (1905), 34 Ind.App. 601, 73 N.E. 288; American Car, etc., Co. v. Clark (1904), 32 Ind.App. 644, 70 N.E. 828.
It is averred that in mining coal, blasting is necessary, and that it is the customary, well-recognized and well-known practice and that such practice was so acted upon by appellant and the miners, and that the accident would not and could not have occurred but for the dust-laden air, which exploded in the usual course of the business of mining, hence the dust must be regarded as the efficient or proximate cause of the explosion and injury. ...
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