Western Coal & Mining Co. v. Buchanan

• Decision Date: 29 April 1907
• Parties: WESTERN COAL & MINING CO. v. BUCHANAN.
• Court: Arkansas Supreme Court

102 S.W. 694

WESTERN COAL & MINING CO. v. BUCHANAN.

Supreme Court of Arkansas.

April 29, 1907.

Appeal from Circuit Court, Franklin County; Jeptha H. Evans, Judge.

Action by J. L. Buchanan against the Western Coal & Mining Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Appellee, Buchanan, and one Korkille were employed in appellant's coal mine to remove track from a certain portion of the mine which was no longer in use. This was in the "Fifth North" entry, and the places where the track was to be taken up at the time in question were the "straight heading" and the "back heading"; terms describing passageways of said entry. These headings were abandoned as work places and were marked as containing gas by cross-marks, which were warnings against entering them. They had been inspected by the fire boss the morning of the injury to appellee. Immediately before going to work, Buchanan and Korkille, the fire boss and the pit boss, met at the bottom of the shaft. The place where the track was to be removed was some quarter or half a mile distant from the bottom of the shaft. The evidence conflicted as to the information given by the fire boss as to the presence of gas; Buchanan's version being that the fire boss told them that the straight heading was clear of gas, but that there was a little gas in the back heading, but not enough to hurt. The fire boss says that he told them that there was not much gas in the main heading, but "for God's sake don't go in the back heading with an open light." The pit boss said if there was any gas they should have safety lamps. The fire boss proceeded to get the safety lamps for them, but found there was only one in condition for use. This was given to Korkille. There was evidence tending to show that Buchanan was not familiar with the use of a safety lamp, and that he so informed the pit boss; and there was evidence tending to show that Korkille was familiar with the use of it.

The evidence for the appellant tends to prove that the safety lamp was given to Korkille for the two of them to work by, and not for the purpose of inspection, as that had just been done by the fire boss, and that they were warned not to go to their working place with open lamps, as there was too much gas in it to permit the use of open lamps, and despite such instruction did go into their working place with the knowledge that there was gas there, and with an open lamp upon Buchanan's cap, which caused the ignition of the gas and consequent explosion. The explosion resulted in the death of Korkille and serious injury of Buchanan.

The evidence on the part of appellee tends to prove that the safety lamp was given to Korkille for the purpose of inspecting the headings for gas before working therein, and not for the purpose of using it to work by. There is a conflict as to whether the light from a safety lamp would be sufficient to work by. It seems to be certain that an open light would give more light. The testimony of appellee is that the safety lamp was only used for inspection purposes and its light insufficient to work by, while the testimony on the part of appellant is that it gave sufficient light to work by, and should be used instead of an open lamp where gas was present in any quantity.

The court gave 7 instructions, and refused to give 15 instructions requested by appellant. The seventh instruction given by the court is as follows:

"(7) The duty of using ordinary care to provide a reasonably safe place for an employé to work, including a reasonable inspection, is a master's duty, and the master does not discharge it by assigning its performance to one who in other respects is a fellow servant of the plaintiff. In performing a master's duty, any one to whom the master assigns it represents and stands in the place of the master. If such person is negligent in the performance of such duty, such negligence is the negligence of the master, and the plaintiff does not assume the risk of negligence, if there is such negligence in the performance of the master's duty. He may rely on the master to perform his duty, or any one whom the master assigns its performance, unless he knows the master has not performed his duty in person or by another, or unless as an ordinary prudent and cautious person he ought to know of such failure."

The tenth and fourteenth refused instructions are as follows:

"(10) If the jury believe from a fair preponderance of the evidence that plaintiff and his fellow laborer, Korkille, were informed that there was gas in the back heading, that prior to and at the time of the accident plaintiff knew that the part of the entry where he was injured had been marked out and was unsafe on account of the existence of gas, and for this reason he and Korkille were given a safety lamp with which to work, that when furnished with a safety lamp plaintiff said to Korkille, in substance, if there was enough gas for a safety lamp,...