Electric Plaster Co. v. Reedy

— 62 — The opinion of the court was delivered by Porter, J.: The contentions of plaintiff in error that the court should have rendered judgment upon the opening statement of counsel for defendant in error, and that the objection to the introduction of any testimony under the petition should have been sustained, will be considered together with the claim that the court erred in overruling the demurrer to the evidence. These three contentions all revolve about the proposition that the deceased was guilty of contributory negligence which prevented defendant in error from recovering. It is urged that, being apt experienced miner, and familiar with the surroundings and situation, the deceased knew or should have known the thinness of the wall in the “Blossom” room, the location of the shot and its probable consequences, and, being charged with this knowledge, he should have sought a place of safety ' near one of the sides of the “company” room and away from the front of the entrance. The testimony of the experienced miners was to the effect that in an underground mine like this, where impenetrable darkness prevailed everywhere, except as dispelled for a short distance by the smoky lamps carried in the miners’ caps, it was impossible for any one, without the use of a compass and frequent measurements, to know with any certainty the direction a tunnel or room was being worked. None of them ever used a compass, because, as appears from the. evidence, it was the duty of the superintendent, Shinn, to give the orders to the others, including deceased, as to where and in what manner the work should be done. It was his duty, as a matter of law, to ascertain and know the thickness of the pillars, and to take reasonable precautions for the safety of the men. It was the duty of the superintendent to know the direction the “Blossom” room had been extended and the danger which would probably result — 63 — to the men in the “company” room when the shot was fired. He represented the company. (A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632; Mining Co. v. Robinson, 67 Kan. 510, 73 Pac. 102; Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856.) The testimony of several of the miners was that the superintendent had told them that the “Blossom” room was being extended so as to break into the “Marcy” room on the north, and, indeed, every circumstance in the case warranted the jury in finding that this was true, and that no one was more astonished than Shinn himself when the shot broke through where it did. John Marcy, one of the miners, testified that the superintendent remarked when the accident oc-' curred, and Reedy was found to be injured: “ ‘The company will just raise hell with me. . . . I ought to knew the strength of that pillow/ “Ques. What did you understand Mr. Shinn to mean’ by that pillow? Ans. Why, that pillow where the shot came through; said he oúght to knew the strength of it.” It is incredible that the superintendent would-have ordered the men to go into the “'company” room directly across the main tunnel from where the shot was placed and expose them and himself to a danger so apparent if he had supposed the rib between the “Blossom” room and the main tunnel was so thin. He evidently thought the “Marcy” room was the point of danger, for he warned Marcy out of that and ordered him to a place of great danger. Marcy, when the explosion came, was standing beside Reedy, and was knocked down by the force of the explosion. The room he had just been ordered out of was, in fact, a place of safety. The evidence on the part of plaintiff was sufficient to support all the material allegations of the petition, and it is unnecessary to discuss the claim that the petition stated no cause of action. We find no ground for the contention that there was error in the instructions. The court instructed the — 64 — jury quite fully upon the question of the contributory negligence of the deceased, and the complaint that instructions Nos. 1 and 3, requested by plaintiff in error upon that question, were refused has no force. The same may be said of requested instruction No. 2, which referred to the knowledge of deceased of the thinness of the wall. The sixth instruction given by the court stated the law more favorably to plaintiff in error. Requested instruction No. 4 was properly refused. A portion of it reads as follows: “That at the best the employment is a dangerous one, and the safety of the employment depends, possibly, more largely upon their own care and caution than the perfect condition of the mine.” There was no contention that the company was required to keep its mine in perfect condition; in fact, the condition of the mine was not involved. The questions whether plaintiff in error was negligent in the operation of the mine, and whether that negligence, was the proximate cause of the death of Reedy, were involved; and, even if the condition of the mine had been the principal question in the case, there could have been no occasion for the court to draw a comparison showing the relative importance of those things which make for the safety of one employed in the dangerous business of mining. The general rules of negligence which apply to master and servant employed in any hazardous business apply to this case. The theory of defendant in error is that the place where deceased stood in the “company” room would have been a place of absolute safety if the shot in the “Blossom” room had broken toward the “Marcy” room. That the force of the explosion would have been in that direction if the “Blossom” room was being pushed in the direction every one had been led to believe it was, is clearly established by the evidence. The question of contributory negligence was one of fact, and this defense was fairly presented. The jury had before them abundant evidence to warrant the finding, which is in — 65 — volved in their general verdict, to the effect that deceased was not guilty of contributory negligence. By their verdict they also found that the company failed to discharge a positive duty which it owed the deceased to provide him a safe place in which to work, and that this negligence of the company was the proximate cause of his death. The doctrine of assumed risk therefore has no application to the facts in the case. (Emporia v. Kowalski, 66 Kan. 64, 70, 71 Pac. 282; Schwarzschild v. Drysdale, 69 Kan. 119, 122, 76 Pac. 441.) The judgment is affirmed. All the Justices concurring.