Bralley v. Tidewater Coal & Coke Co.

Miller, President: The plaintiff below recovered a verdict and judgment against defendant for $3500, for the death of G. T. Lipscomb, a coal miner, the result of being burned by gas generated in defendant’s mine and ignited from the lamp of another miner employed in another part of the mine. The negligence charged in the four counts of the declaration is, that defendant wrongfully and negligently permitted fire damp, gases, vapor, and foul air to accumulate in the main and side entries; employed and retained incompetent and inexperienced agents and servants; failed to furnish safety lamps; employed and used a poor, defective and insufficient apparatus, called a fan, for driving air into said entries; failed to employ a competent mine boss and fire boss, and to keep at said mine safety lamp or lamps, as required by law, and to have the mine examined and notice given employees of the accumulation and existence therein of fire damp and dangerous gases, and to provide ample means of ventilation; failed to cause air to be circulated through the said entries, headings and working places so as to dilute, render harmless and carry off fire damp, gases and vapors, but permitted the same to be ignited and to explode with great force and violence about deceased while employed in said mine, in the discharge of his duties, and whereby he was bruised, wounded, suffocated and injured, so much that he then and there died. The evidence shows that on the day deceased sustained the injuries complained of he had been employed in the defendant’s mine, in company with another miner, and that after having blown down an amount of coal the two left the mine, intending to return during the night shift and load their coal. On the way out they met the mine boss, who says he warned them of the presence of gas in the mine, and that the last break-through next to the heading where they had been at work was not yet completed, and that they had better not go into the mine until it should be completed; The practice was to make breakthroughs every sixty feet, as the work progressed. The miner [280] wbo was witli Lipscomb did not recollect that the mine boss warned them of the presence of gas. He admits, however, that the fact that the break-through was not completed was mentioned, and that they talked of the burning of a mule by gas near the same place but a short time before that. Lipscomb alone returned to the mine that night, and the testimony of one of the miners is that Lipscomb fanned the gas out of the place where he was at work with his coat, and that the gas which burned Lipscomb was ignited from his lamp some eighty feet from where Lipscomb was employed, which was from 110 to 120 feet from the last break-through. The plaintiff offered no other evidence showing any alleged negligence of the defendant, or of the mine boss or the fire boss, unless the fact that the last break-through had not been completed’or brattice not used, as to which there is no specific allegation, be evidence of the alleged failure to provide ample means of ventilation. No evidence on either side showed negligence in any other particular.' And contrary to the fact alleged in the declaration the evidence showed employment and retention of a competent mine boss and fire boss, and that the means of ventilation, required by the statute, unless the incompleted breakthrough and failure to use brattice, should be regarded a part of such means, was ample for the purposes of the mine. Unless this case can be differentiated from Williams v. Thacker Coal & Coke Co., 44 W. Va. 599; McMillan v. Coal Co., 61 W. Va. 531; and Squilache v. Coal & Coke Co., 64 W. Va. 337, they must control our decision. The only point of distinction attempted is that as the same section, section 409, Code 1906, which imposes upon the operator or agent of a coal mine the duty to provide and maintain ample means of ventilation, also requires that “as the working places shall advance, break-throughs for air shall be made every one hundred feet in the pillars, or brattice shall be used,” the operator of the mine is bound to the performance of the latter duty as well as the former, and is not excused from liability on account of the negligent performance of the latter duty by the mine boss, because, by section 410, the performance of that duty is specifically imposed on him. It is argued that the duty respecting break-throughs is a double duty, imposed upon the operator by the first section as well as the mine boss by the latter section, and that the [281] doctrine of fellow servantcy applied in the ca,ses cited, can have no application to this case. In view of the construction heretofore placed by us upon this mining law we see little force in the argument. So far as it is based upon the two provisions of section 409 alluded to, the same argument might be made with respect to the appointment of a fire boss and the duties imposed upon him by said section. We are required to read sections 409 and 410 together. They pertain to the same subject matter. Section 410 does not say that the operator or agent of the mine shall personally discharge the duty of making break-throughs, or the use of brattices, any more than it requires of him discharge of other duties thereby required and imposed on the fire boss; but section 410 specifically imposes that duty upon the mine boss. True it is that the provisions of section 410 were made, as recited, to better secure the ventilation of coal mines, and to promote the health and safety of persons employed therein; yet we think that the purpose of the legislature, with that end in view, was that these officers, the mine boss and the fire boss, were to have no respondeat superior with respect to those duties specifically, devolved upon them by the statute, but that they within their several spheres, should be made the responsible agents, and be independent, and from under the control of the operator in the discharge of those duties, with authority given them by the statute to call upon and require of the operator that he provide them with the means and materials for the proper performance thereof. In consonance, therefore, with our previous decisions, we must hold the mine boss and fire boss fellow servants with the miner in the performance of the duties imposed upon them respecting the ventilation of the mine, including therein the duty of the mine boss to make break-throughs, and to use brattices for such ventilation. In considering this case our attention has been called to the fact that the legislature of Illinois, in 1905, in re-enacting the mining laws of that state, made provisions therein similar to those in Pennsylvania and in this State, and that the supreme court of Illinois, in Henrietta Coal Co. v. Martin, 321 Ill. 460, refused to follow our decisions and the decisions in Pennsylvania, in construing the Illinois statute. We have considered those cases as well as the later cases of the same court, together with [282] the decision of the Supreme Court of the United States, 205 U. S. 60, in the case of Wilmington Mining Co. v. Fulton, originating in Illinois and affirming'the judgment below. „ This latter case went- to the Supreme Court upon a constitutional question, and of course that court did not undertake to give its own construction of the statute in question. It simply followed the construction given by the supreme court of Illinois, and determined from it whether the statute, as alleged, was in conflict with the Fourteenth Amendment to the Federal Constitution. No consideration of these cases induces us to depart from our former decisions. These conclusions render it unnecessary for us to consider specifically any other questions presented and argued here. They are all answered by our conclusions on the main question. We are, therefore, of opinion to reverse the judgment below, award the defendant a new trial, and to remand the case to the circuit court for that purpose. Reversed and Remanded.