Western Coal & Mining Co. v. Jones

• Court: Arkansas Supreme Court
• Writing for the Court: HILL, C. J.
• Citation: Western Coal & Mining Co. v. Jones, 87 S.W. 440, 75 Ark. 76 (Ark. 1905)
• Decision Date: 15 April 1905
• Parties: WESTERN COAL & MINING COMPANY v. JONES

87 S.W. 440

75 Ark. 76

WESTERN COAL & MINING COMPANY v. JONES

Supreme Court of Arkansas

April 15, 1905

Appeal from Sebastian Circuit Court, Greenwood District, STYLES T ROWE, Judge.

Affirmed.

J. F Jones sued the Western Coal & Mining Company, a corporation engaged in operating a coal mine. The complaint alleged that plaintiff was working in defendant's mine, and was injured in an explosion caused by defendant's neglect and failure to ventilate the mine. The answer denied the charges of negligence. The evidence is sufficiently stated in the opinion of the court. The following instructions were requested by defendant, and were refused by the court, viz:

"1. Under the law and evidence in this case, the plaintiff is not entitled to recover, and you are instructed to return a verdict in favor of defendant.

"2. If the jury believe from the evidence that the accident by which plaintiff was injured would not have happened if the shot fired by plaintiff had not blown into the adjoining room, in which there was gas, and in which miners were prohibited from working until same could be properly ventilated, then plaintiff cannot recover, even though the evidence shows he did not intend that it should blow through, and did not believe or know, when he prepared and fired same, that it would do so.

"3. The defendant owed no duty to plaintiff to keep the room adjoining his, and in which he was not required to work and not required to enter in order to do his work, free from gas. It fulfilled its duty to him if it kept his room and place of work free from standing gas, and in a reasonably safe condition; and if the evidence shows that the plaintiff was injured by igniting gas in Everett's room, adjoining his, by reason of a blow-out shot from plaintiff's room, which he prepared and fired, then plaintiff is not entitled to recover.

"4. If the jury believe from the evidence that it was plaintiff's duty as a miner to keep informed as to the probable distance from the face of the coal from where he was working in the breakthrough to the face of the adjoining room, and that he should not have placed the shot, the point of which should be so near the face of the adjoining room as to blow out when fired into that room then plaintiff is not entitled to recover, and your verdict should be for defendant.

"5. If the jury believe from the evidence that it was against the rules of the company for the point of a shot to go beyond the cutting, that this rule was generally known and observed among the miners in defendant's mine at the time plaintiff was injured, and that plaintiff, in violation of this rule, drilled the hole for his shot so that the point went about eight inches beyond the cut, and by reason of its being bored this distance beyond the cutting, when the shot was fired it blew into the adjoining room, ignited the gas therein and burned plaintiff, then he is not entitled to recover.

"6. If the jury believe from the evidence that plaintiff was burned by the flame or fire from a shot fired by him, and which blew into the adjoining room, then you should return a verdict for the defendant.

"7. If the jury believe from the evidence that, on account of insufficient ventilation and the accumulation or probable accumulation of gas in the room adjoining the one in which plaintiff was at work, defendant's fire boss regarded it prudent to 'deadline' the said adjoining room and to keep same from being worked until proper ventilation could be secured, so as to remove the gas therefrom, and such as might accumulate therein, and in order to prevent any one from working in or entering said room, did 'deadline' it on the morning the plaintiff was injured; that Everett, the miner who had been working in said room, did not work in there the day on which plaintiff was hurt, because same had been 'deadlined,' and because of the accumulation of gas therein; that the fire boss on that morning, and before plaintiff was hurt, asked plaintiff where Everett was, and if he intended to make or finish his breakthrough, to which plaintiff replied that he did not know, that Mr. Mayes, had cut his (meaning plaintiff's) breakthrough, and that he reckoned he would have to cut or finish Everett's; that the fire boss then told him to go ahead and cut it and to finish it or he wanted it finished, that day; that plaintiff then began to cut same, and, during the progress of the work, put in a shot in making said breakthrough for the purpose of shooting down the coal, but, on account of said shot being placed too near the face of the coal in Everett's room, instead of the shot's doing its work as intended, and accomplishing the purpose for which it was prepared, it blew through into Everett's room, and by reason of this ignited gas in said room, and said gas alone, or in conjunction with the flame from this shot, burned plaintiff, then, under this state of facts, if the accident and injury occurred under the circumstances above detailed, plaintiff would not be entitled to recover.

"8. If the jury believe from the evidence that plaintiff's injuries were caused by and on account of his accidentally or unintentionally putting the point of a shot so near the rib of the adjoining room that it blew through and caused the explosion, then this would be an accidental injury for which defendant is not liable.

"9. The mere fact that the room adjoining plaintiff's was on the day of the injury 'deadlined' or that there was gas in said room, of itself, is not sufficient evidence to warrant the jury in finding a verdict for plaintiff.

"10. If the jury believe from the evidence that it was the rule of the mine in which plaintiff worked that the point of no shot should extend beyond the cutting, that this rule was generally known by the miners at work therein, and that it was the general rule and custom for the said miners not to put the point of their shots 'into the hard,' or beyond the cutting; that plaintiff, in violation of this rule, put a shot in the breakthrough, so that the point extended several inches beyond the cutting, and that in consequence of this the said shot blew out into the next room, and caused the explosion by which he was hurt, plaintiff would not be entitled to recover in this action.

"11. If the jury believe from a fair preponderance of the evidence that, had the shot fired by plaintiff in the breakthrough not blown out into the adjoining room, there would have been no explosion, and he would not have been injured, and they further believe from a fair preponderance of the evidence that the placing of the shot so near the rib of the adjoining room that it blew through was caused by the bad judgment of plaintiff in determining the distance the point of the shot was from said rib, or that the said shot was accidentally or unintentionally so placed, then plaintiff's injuries were the result of an accident for which defendant is not in law liable."

The court gave in charge to the jury Sandels & Hill's Digest, §§ 5048 and 5058, and further instructed them as follows:

"4. The court charges you that, before the plaintiff can recover in this action, the burden is on him to prove by a preponderance of the evidence that the defendant willfully failed to comply with section 5048 of Sandels & Hill's Digest, as set forth in the instructions, and that on account of such willful failure gas accumulated in the mine, and that while plaintiff was making an opening from his room into another room in said mine under the order of the defendant, and that the gas so accumulated ignited from a shot while he was making said breakthrough or opening from his room into another room in said mine, and that on this account he was injured and damaged as complained of by him.

"6. The court further charges you that it was the duty of the plaintiff to obey all reasonable commands of the defendant. In obeying the commands, if the plaintiff did so, to make an opening from his room into that of another, if such command was given him, then, if the plaintiff had no information or knowledge to the contrary, he had a right to presume that the defendant had done and would do its duty toward him, and he could rely upon the judgment and discretion of the defendant in its performance. When the plaintiff was ordered, if he was, by the defendant to make the opening from his room into another room in said mine and the risk or danger of obedience was not obvious or apparent to him, then the plaintiff could ordinarily act upon such presumption and reliance and obey such order, if given, without being chargeable with contributory negligence or with the assumption of the risk of so doing. The plaintiff was not required to stop to ascertain the dangers and risks incident to obedience, if they were not already patent or were known to him; but the plaintiff might, in confidence that the defendant had done and would do its duty to him, act at once in obedience to the defendant. If the order was made by the defendant to make the opening from his room into another room, then such order was an implied assurance to the plaintiff that there was no danger in obeying it, and he could act accordingly, without subjecting himself to the imputation of negligence.

"If the plaintiff was acting in obedience to the order of the defendant to make said opening, and in so doing he was injured, then he can recover damages from the defendant, unless the defendant was guilty of no negligence.

"If however, the danger or risk of injury from obedience was so great and so obvious and apparent to the plaintiff as to render it, under the circumstances, unreasonable and imprudent for him to obey, but he voluntarily obeyed and was injured, then he would be guilty of contributory negligence, and without remedy against the defendant, and...