Western Coal & Mining Company v. Corkille

Decision Date07 November 1910
Citation131 S.W. 963,96 Ark. 387
PartiesWESTERN COAL & MINING COMPANY v. CORKILLE
CourtArkansas Supreme Court

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge reversed.

Judgment reversed and cause remanded for new trial.

Ira D Oglesby, for appellant.

Mechem & Mechem, for appellee.

FRAUENTHAL J. KIRBY, J., not participating.

OPINION

FRAUENTHAL, J.

The appellee's intestate, Peter Corkille, was employed by appellant as a tracklayer in a coal mine owned and operated by it at Denning. On May 6, 1905, he was severely burned and fatally injured by the explosion of inflammable gas while at work down in said mine, and died from the effects of said injuries on May 11, 1905. His administratrix instituted separate actions to recover on behalf of the next of kin and of the estate of the deceased, which were subsequently consolidated. The original complaints in both actions were filed on May 4, 1907. In the original complaints it was alleged that "the defendant was negligent in that it negligently suffered and permitted gases, fire-damps and other combustible and inflammable matter in dangerous quantities to accumulate in said mine, and that it failed to warn the deceased of the presence of such gases, fire-damp and other inflammable material in said mine." On August 6, 1908, amended complaints were filed, in which it was alleged, in effect, that the act of negligence in permitting and suffering said gas, fire-damp and other inflammable material to accumulate in said mine consisted in negligently breaking down and leaving open a brattice which destroyed the safe ventilation of the mine, and caused the accumulation of the inflammable gases.

The defendant denied each allegation of negligence charged against it, and pleaded as a defense the contributory negligence of the deceased and the assumption of the risk by him of the injury which he sustained.

On the day of the injury the deceased and a fellow-servant named Buchanan, at the direction of the foreman of the mine, went down in the mine to take up some track in the north fifth entry. At the bottom of the slope they met the pit boss and the fire boss, and inquiry was made of the fire boss as to whether or not there was any gas in this entry. There is a conflict in the testimony as to the reply made by the fire boss to this inquiry. According to the testimony on the part of the plaintiff, he stated that the entry was clear of gas except a mile in the back end, but that there was no gas to hurt. On the part of defendant, the testimony tended to prove that he stated that there was gas in the back heading where a portion of the track had to be pulled. The pit boss stated to the men that if there was any gas they should be provided with a safety lamp. The testimony on the part of defendant tended further to prove that Buchanan was not familiar with the use of a safety lamp, but that Corkille was familiar with its use and in the detection of gas. The safety lamp was then given Corkille, and as he and Buchanan went on to the entry Buchanan said to Corkille that if there was enough gas to require a safety lamp they ought to have the fire boss to look after it, and that Corkille replied that he could look after it as well as the fire boss. The two men arrived at the entry at about 8 o'clock A. M., and the deceased proceeded to inspect the place for gas. He reported to Buchanan that there was no gas, in the entry and after working for a short time in the front portion of the entry with open lamps the deceased left for some tools and did not return until after probably two hours or more. The testimony on the part of plaintiff tended to prove that in the meanwhile, and about 9:30 A. M., a brattice located on an air course and about 1,500 feet from the slope where deceased and Buchanan were working, was broken down by fellow-servants, and was left open for a few hours, and that the effect of this was to destroy the ventilation in the entry where deceased was at work and to cause the accumulation in dangerous quantities of inflammable gases at that place. Shortly after the deceased returned to the north fifth entry and proceeded to work with the open lamp, the explosion occurred and caused the injury. The testimony on the part of the defendant tended to prove that the brattice was not broken in any manner.

The court gave a number of instructions on behalf of the plaintiff, among which was the following:

"6. If there was a dangerous quantity of gas in the entry where Corkille was, and he knew it and appreciated the danger of working there, then Corkille assumed the risk of danger from that cause, and plaintiff can not recover. But if there was a dangerous quantity of gas in the entry, and Corkille knew it, yet, if he did not appreciate the danger of working there, he did not assume the risk himself, and plaintiff is not barred from recovery on the ground of assumed risk."

The defendant saved its objection in the proper manner to the giving of the above instructions, and specifically to the latter portion thereof.

The defendant requested the court to give the following instruction, No. 8:

"You are instructed if you believe from the evidence the explosion was caused by the negligence of the employees of defendant in taking down and leaving down a part of a brattice, then for such negligence defendant is not liable, as these employees were fellow-servants of the deceased."

The court refused to give this instruction as asked, but modified the same by adding the following words:

"Unless the same was done with the knowledge and direction and authorization of Thomas. In such case the act of breaking through the brattice, if done, would be the act of defendant, and, if negligent, the negligence would be the negligence of defendant, and not of fellow-servants, and plaintiff would not thereby be barred of recovering under the law of fellow-servants."

1. It is contended by counsel for defendant that the court erred in giving that portion of instruction number 6, at the request of plaintiff, which stated:

"But if there was a dangerous quantity of gas in the entry, and Corkille knew it, yet, if he did not appreciate the danger of working there, he did not assume the risk himself, and plaintiff is not barred from recovery on the ground of assumed risk."

We think that this instruction was misleading and erroneous. The rule is well settled that while a servant does not assume the unusual risks of the service and of which he is ignorant, he does by his contract of employment assume all...

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