Morgan v. Carbon Hill Coal Co.

The opinion of the court was delivered by Hoyt, J. The motion for non-suit made by the defendant at the close of the plaintiffs’ case should have been granted. At that time there was absolutely no proof tending to show any negligence on the part of the company. On the contrary it affirmatively appeared from such proof that the company had taken every precaution required by law and custom to protect its employes while working in the mine. And as it .is not claimed that the company is a guarantor of the safety of its employes while so working, there could be’no liability in the absence of some negligence on its part. The only acts, excepting those of an employe by the'name of Jones, claimed by the respondents to have shown negligence on the part of the company, was that of the stoppage of the ventilating machinery from Saturday night until Sunday night preceding the accident, which occurred on Monday morning at about 9 o’clock. But there is no proof whatever in the record tending to show that [579] such stoppage of the machinery during such interval, when coupled with the fact of its being started and continuously run for a period of twelve or fourteen hours before the time of the accident, was in any manner an act of negligence on the part of the company. As to the acts of the employe Jones we think the proof does not show that at the time of the accident he stood in the relation to the deceased of a vice principal of the company. We are satisfied with what was said by us in the opinion in the case of Sayward v. Carlson, 1 Wash. 29 (23 Pac. Rep. 830), but we do not think that under the definition of a vice-principal therein given, Jones occupied such a relation to the company. He had by virtue of his employment no right to control the action of the miners in the - prosecution, of their work. Such control was vested in another employe of the company known as the “inside boss.” The only control, if any, that Jones, as “fire boss,” had of the men was to direct them to leave the place where they were working, and go to another place if their continuance at work in the first place was in his opinion dangerous; but even if we assume that in determining that question and directing the employes by virtue of the authority so given him he would be acting as a vice principal, it does not follow that at the time of the accident he was engaged in the duty required of him as such vice principal. In the situation in which he found the deceased party and the witness Williams, and while they were together up to the time of the accident, he had by virtue of his duties as ‘ ‘ fire boss ’ ’ no right whatever to control their action. Consequently, at that time he did not stand in any such relation to them as would make the company responsible for his acts. Besides, it clearly appeared that if said Jones was guilt3T of such negligence as occasioned the accident, the deceased party was guilty of contributory negligence. If any one [580] had any reason to suspect the presence of dangerous gases at the point where they were, he had under the proof the same reason to suspect its presence. If he did suspect such to be the fact his remaining in that spot for the time he did, engaged in conversation having no reference to the prosecution of the work of the mine, was in itself an act of negligence on his part. If he did entertain such suspicion there is no reason to suppose that Jones did, and in its absence what he did would not necessarily show negligence on his. part. Further, we think it appears affirmatively from the proofs offered on the part of the plaintiffs that deceased actively contributed to the act of Jones, which, it is claimed, led to the accident, by the remark which he made to him just-before the explosion occurred. The only reasonable explanation of the action of Jones when he commenced to get up with his lamp above his head is that it was his intention to test the air close to the roof of the passage for the purpose of ascertaining whether or not there was any gas in that locality, and his reply to the remark at that time made to him by the deceased shows that he rested upon the assurance of the deceased that there was no gas there, and that for that reason he could safely open his lamp for the purpose of lighting his pipe without making any further investigation. On each of the grounds, then — (1) That there was no sufficient proof tending to establish negligence on the part of the company, (2) that if such negligence was shown it affirmatively appeared from the proofs that the deceased contributed thereto — the plaintiff had failed to make a case against the defendant, and the motion for a non-suit should have been granted, and whatever may be held as to the effect upon such motion of the defendant going into its defense, it is clear that it is entitled to the benefit of such motion if, at the time the proofs are finally closed, they [581] are not sufficient to establish a prima facie case of liability to the plaintiffs. After a careful examination of all the proofs in the record we are unable to find anything which could in any manner aid the plaintiffs’ case. The judgment must be reversed, and the cause remanded with instructions to grant the non-suit, as moved for by the defendant. Stiles and Anders, JJ., concur. Scott, J., concurs in the result.