"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."
"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...
