SOMMER v. CARBON HILL COAL CO., 89 F. 54

MORROW, Circuit Judge. Various technical objections are made on a motion to dismiss the writ of error, based chiefly upon the alleged insufficiency of the record; but we think they are not well taken, .and that the motion to dismiss should be, and is hereby, denied.

Counsel for plaintiff in error contends that the complaint as amended states a cause of action, in that it shows, as claimed, that the plaintiff in error was injured by and through the negligence Of the defendant company, through its vice principal, one John Lowery, in not having provided and maintained the proper circulation of air to the face of the said chute No. 2, the working place of the plaintiff in error, so that the same would be free from gas, as required by law.

Counsel for the defendant in error contends that the averments of the complaint as amended show two things: First, that Lowery was a fellow servant, and not a vice principal, of the plaintiff in error; and, second, that plaintiff in error was guilty of gross contributory negligence.

The act of the legislature of the state of Washington approved March 5, 1891, entitled “An act relating to the proper ventilation and safety of coal mines and prescribing the manner of appointment of inspectors,” provides in detail for the safety of persons employed in the coal mines of the state, and requires, among other things, that the owner, agent, or operator of every coal mine, whether operated by shaft, slope, or drifts, shall provide and maintain in every coal mine a good and sufficient amount of ventilation for such persons as may be employed therein.

The act prescribes the minimum amount of air that shall be in circulation, and for its increase at the discretion of the inspector, according to the character and extent of the workings or the amount of powder used in blasting, and provides that the volume of air so prescribed shall be forced and circulated to the face of every working place throughout the mine, “so that said mine shall be free from standing powder, smoke, and gases of every kind.” The purpose of this statute is directed specifically to secure the proper ventilation of coal mines for the protection and safety of workmen who might otherwise be injured by the explosion of accumulated gases. 11 is a matter of common knowledge that coal mining is an exceedingly dangerous employment, by reason of the presence of explosive gases given off by the coal, and that the most important branch of colliery work is the management of the ventilation for the purpose of supplying fresh air to the workmen, and for the removal of the dangerous gases from the working places in the mine.

In many states, where such mining is carried on extensively, elaborate systems have been provided by law for the protection of the miners, requiring official inspection of the mines and their proper ventilation and means for the escape of the miners in case, of accident. In this respect, such a law is, in effect, the measure of that reasonable care which the owner or operator of a coal mine is required to take to avoid responsibility for injuries to workmen arising from accidents of this character.

The general duty imposed by law upon the master is to provide a suitable and reasonably safe place for the doing of the work to be performed by the servant. What is a reasonably safe place is generally governed by the circumstances of each particular case; but here the law, having regard to the hazardous nature of the employment, has undertaken to provide adequate protection by imposing upon the master a specific duty, which he must perform to escape the charge of negligence.

It is a duty the object of which is to secure a reasonably safe place for the workmen in the mine, and is a positive duty, which cannot be delegated to a servant so as to exempt the master from liability for injuries caused to another servant by its omission. Railway Co. v. Jarvi, 3 C. C. A. 433, 53 Fed. 65; Gowen v. Bush, 22 C. C. A. 196, 76 Fed. 349, 352.

It is alleged in the complaint that the defendant, in accordance with the law to which reference has been made, had in its employ one John Lowery on the 22d day of June, 1896, for the purpose of providing tlie said mine with air, and overseeing and conducting, guiding, and managing the ventilation of the said mine for the proper escape, and in freeing the said mine from all gases an’d smoke of every kind, for the safety of the employés of the said defendant; that the said John Lowery was a vice principal of the defendant, and known as a fire boss, and not a fellow servant.

Disregarding this last averment as a conclusion drawn from the facts stated, it is clear that, under the law and the allegations of the complaint, Lowery was intrusted' with a duty in the performance of which he represented the owners and operators of the mine, and that if he was negligent in the performance of that duty, and the plaintiff was injured thereby, the latter did not assume the risk of such employment.

The amended complaint charges that gas did accumulate in the working place at the face of chute No. 2, owing to the negligence and carelessness of Lowery; that plaintiff notified Lowery of the fact, and that it was due to an insufficient amount of air at the face of the chute, and requested Lowery to furnish the working place with more air and better ventilation, which he neglected to do; that, in consequence of this negligence and carelessness on the part of Lowery, an explosion occurred in chute No. 2, and the plaintiff was injured. In Railroad Co. v. Reesman, 9 C. C.

A. 20, 60 Fed. 370, a statute required that railroad companies should erect and maintain lawful fences on the sides of the road. The defendant had negligently suffered the fences along its right of way to become and remain out of repair and insufficient to keep cattle off the track, and, in consequence of this neglect, an animal broke through the fence, got upon the track, and derailed the train upon which plaintiff was employed, whereby he was injured.

It was urged by the defendant that the failure to kéep the fence in repair was the negligence of a fellow servant, and that, therefore, the defendant was not responsible. Mr. Justice Brewer, speaking for the circuit court of appeals for the Eighth circuit, said: “But the duty is cast by the statute upon the company, and it is cast as an absolute duty. It must erect and maintain safe and secure fences.

It is a duty whose object is the securing a safe place for the employ és on the train to do their work, and that, as is known, is an absolute duty cast upon the company, responsibility for neglect of which cannot be evaded by intrusting it to some employs.” In Railroad Co. v. Herbert, 116 U. S. 642, 647, 6 Sup. Ct. 590, this doctrine was applied to a state of facts which, as in the present case, involved the question of contributory negligence as a defense to the action.

In that case a brakeman was injured while acting under the orders of a yard master in attempting to stop cars by means of a brake that was out of order.

To recover damages for the injury sustained, the pláintiff brought an action against the company, alleging in the complaint that it was its duty to provide good and safe cars and machinery and apparatus of a like character for braking and handling them, and also to make rules and regulations for switching and handling them in the yard, and for notifying employes of the condition of defective and broken cars, so that they might not be subject to unnecessary danger; and he alleged that the company had neglected its duty in these particulars, and thereby, without his fault, he was injured.

In its answer the company admitted the allegations as to the employment of the plaintiff and the injuries he received, but set up that it was his duty to know, and that he did know, the condition of each of the cars, and that he carelessly put his leg between them when setting the brake, and thus, through his own fault, suffered the injury of which he complained. There was a verdict for the plaintiff, and the case .was taken to the supreme court upon a writ of error.

That court, in discussing the questions of law involved in the case, said: “Tbe general doctrine as to the exemption of an employer from liability for injuries to a servant, caused by the negligence of a fellow servant in a common employment, is well settled. When several persons are thus employed, there is necessarily incident to the service of each the risk that the others may fail in that care and vigilance which are essential to his safety. In undertaking the service he assumes that risk, and, if he should suffer, he cannot recover from his employer.

He is supposed to have taken it into consideration when he arranged for his compensation. * * * It Is equally well settled, however, that it is the duty of the employer to select and retain servants who are fitted and competent for the service, and to furnish sufficient and safe materials, machinery, or other means by which it is to be performed, and to keep them in repair and order. This duty he cannot delegate to a servant, so as to exempt himself from liability for injuries caused to another servant by its omission.

Indeed, no duty required of him for the safety and protection of his servants can be transferred, so as to exonerate him from such liability. The servant does not undertake to incur the risks arising from the want of sufficient and skillful co-laborers, or from defective machinery or other instruments with which he is to work. His contract Implies that In regard to these matters his employer will make adequate provision, that no danger shall ensue to him.

This doctrine has been so frequently asserted by courts of tbe highest character that it can hardly he considered as any longer open to serious question.” Applying this doctrine to the present case, we think the complaint is, in this respect, sufficient.

The contention that the plaintiff has stated facts which show that he was guilty of-contributory negligence is based largely upon the allegation that, after the plaintiff had discovered the accumulation of gas in the face of chute So. 2 and had notified Lowery of the dangerous condition of the place, he proceeded to the face of the chute for the purpose of lighting and setting off the charge of giant powder by a fuse thereto attached, and (hat, in his usual manner and way and practice in the mine, he lighted a match for the purpose of lighting the fuse, but that, at the moment the match was lighted, the gas which had accumulated at the face of the chute exploded.

The contributory negligence which, it is claimed, is disclosed by this allegation consisted in the plaintiff returning to the place where he had been working a short time before, and proceeding to light a charge of giant powder so soon after the dangerous presence of a large quantity of gas had been delected and reported by him to Lowery. But how soon he returned does not appeal' from the allegations of the amended complaint, and it cannot be determined from the facts staled that he returned to his work before a reasonable time had elapsed to clear the working place of the accumulated gas.

Moreover, it is alleged that the “plaintiff, in pursuance of his regular course of duty and employment, and thinking and believing that the said Lowery had performed his duty according to law, and freed the face of the said chute from gas,” etc., proceeded to his work.

It would have been better pleading for the plaintiff to have stated some fact or given some reason for thinking and believing that Lowery had performed his duty; nevertheless, the court cannot presume that he had no reason for entertaining such a belief; and, as against such averment, how can it be said that the plaintiff was, by his own showing, guilty of contributory negligence? The plaintiff may, upon the trial, produce such evidence as will fully justify his conduct in returning to his work as he did. As was said by the supreme court in Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup.

Ct. 679, 682: “There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall he considered reasonable and prudent, and wliat shall constitute ordinary care, under any and all circumstances. The terms ‘ordinary care.’ 'reasonable prudence,’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot he arbitrarily defined. Wha.t may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence.

Tbe policy of the law has relegated the determination of such questions to the jury, under proper instructions from Hie court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would he expected of reasonable, prudent men under a similar state of affairs. When a given state of facts is such that reasonable men may differ fairly upon the question as to whether there was negligence .or not, the determination of the matter is for the jury.

It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.” It may be observed, further, that it is incumbent upon the court to indulge every reasonable intendment and presumption in favor of the pleading. The Code of Procedure of the State of Washington- provides one form of civil action for the enforcement or protection of private rights and the redress of private wrongs. 2 Hill’s Ann. St. & Codes Wash. p. 34, § 109.

The complaint in this action is required to contain, among other things, a plain and concise statement of facts constituting the cause of action without unnecessary repetition. Id. p. 9, § 188. It is further provided that in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties. Id. p. 117, § 206.

This rule of construction, contrary to that established by the common law, requires that every reasonable intendment and presumption is to be made in favor of the pleading; and it will not be set aside on demurrer unless it be so fatally defective'that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever. Chambers v. Hoover, 3 Wash. T. 107, 110, 13 Pac. 466; Isaacs v. Holland, 4 Wash. 54, 59, 29 Pac. 976; Boyle v. Railway Co., 13 Wash. 383, 387, 43 Pac. 344; Morse v. Gilman, 16 Wis. 504; Bank v. Kowalsky, 105 Cal. 41, 38 Pac. 517; U. S. v. Parker, 120 U.

S. 89, 94, 7 Sup. Ct. 454. We think, under this rule, that the amended complaint states facts sufficient to constitute a cause of action. The judgment of the lower court is therefore reversed, with directions to overrule the demurrer.