Vandalia Coal Co. v. Yemm , 175 Ind. 524 ( 1910 )

Myers, J.

Appellee commenced this action against appellant in the Clay Circuit Court, for damages for alleged negligence resulting in his injury. The venue was changed to Putnam county, where the cause was tried.

The complaint is in two paragraphs. The first paragraph alleges that appellant was a corporation operating a coal mine, wherein 250 men were employed. The mine consisted of a vertical shaft, from the bottom of which a main entry extended westwardly many hundreds of yards, from which ten cross-entries were turned off to the north, and from these cross-entries mining rooms were turned off by extracting the coal veins. Plaintiff was working in the ninth north cross-entry on December 5, 1906. The negligence averred in this paragraph is the failure to sprinkle the roadway or entry to the shaft. The complaint alleges that the dust had become from two to six inches deep in said entry, had not been sprinkled for a period of many weeks, and for six months had been permitted to become so dry that the air was charged with it to such an extent as to render said entry dangerous for use, as said dust was likely at any time to create what is known as a dust explosion. It is alleged that appellant had notice of these conditions; that on attempting to leave his work he was going along the usual and ordinary way to the shaft, when suddenly and without warning a terrific explosion of said dust occurred in said entry, enveloping him in a sheet of flame, and greatly injuring him; that the concussion and fire which resulted from firing shots or blasting coal in the mine in the customary manner, well known, recognized and acted upon by miners and by appellant, acting upon the dust-charged air in said entry caused the explosion. The paragraph counts upon a liability for failure to sprinkle the roadways, as required under the last clause of §8579 Burns 1908, Acts 1905 p. 65, §11.

The second paragraph is practically the same as the first, except that the cause of the explosion is alleged to have been the negligent and careless acts of certain other workmen in the mine, who, in violation of the statutory mining laws, fired “illegal shots,” drilled holes and put in blasts in improper places, and that these shots, acting upon the dust-laden entries, caused the explosion of dust, and that appellee was injured by the combined negligence of appellant in failing to sprinkle the roadways, and of the miners in putting in the irregular shots or blasts.

1. As the answers to the interrogatories show that the injury resulted from a “dust explosion,” and the judgment is based upon the first paragraph of the complaint, it will not be necessary to consider the second paragraph.

2. 3. Appellants contention as to the insufficiency of the first paragraph of complaint is based on the claim that the sprinkling clause at the close of §8579, supra, has no application to this case, for the reason that the act was passed solely for the ventilation of coal mines, and that the clause cannot be considered for any other purpose. Reliance is placed principally upon the case of Indiana, etc., Coal Co. v. Neal (1906), 166 Ind. 458, in which it was held that the provisions of §7478 Burns 1901, Acts 1891 p. 57, §18, construed in the light of §7443 Burns 1901, Acts 1885 p. 65, §2, in regard to opening and closing doors used in ventilating mines, were designed to prevent interference with the circulation of air, and not designed to provide aid for drivers. The present statute was not in force when that case was decided. The history of this character of legislation, beginning with 1885 (Acts 1885, supra), enlarged in 1891 (Acts 1891, supra), and again in 1905 (Acts 1905, supra) discloses an increasing interest in legislation for the safety of the lives and limbs, and the preservation of the health of miners. The provision in regard to sprinkling mines first appeared in the act of 1905 (§8579, supra). The language is as follows: “In case the roadways or entries of any mine are so dry that the air becomes charged with dust, such roadways or entries shall be regularly and thoroughly sprinkled. And it shall be the duty of the inspector to see that this provision is carried out.” This provision is a part of the same section in which provision is made for ventilating mines, but throughout the section the duties of inspectors are declared, and when we come to the clause respecting sprinkling, there is again the specific duty of the inspector in regard to that provision, thus emphasizing the duty of the mine operator. It is a provision en-grafted upon section sixteen of the act of 1891 (Acts 1891 p. 57, §7476 Burns 1901), which embraced the subject of ventilation. It may be conceded that allaying the dust is in the interest of health, and also that it may reasonably be said to be a proper subject of ventilation, but it will be noted that the ventilation the statute contemplates is that of procuring fresh air, and that is not necessarily inconsistent with the continued existence of dust. There is no provision for removing the dust, nor do we assume that it is practicable to do so, but we are bound to presume, in face of the legislative requirement, that sprinkling is practicable and efficient. The complaint alleges that by reason of the negligent failure to sprinkle the roadways and entries “they had been permitted to remain and be so dry that the air therein became and was so charged with dust as to render said roadways and entries dangerous for use, and likely to create, at any time, what is known as a 'dust explosion/ ” and that the concussion and fire from the blasting, acting upon this dust-charged air, caused the explosion of the dust, and that the explosion was caused by this neglect. Here is a charge not only of negligence, but that such negligence was the proximate cause of the injury. Even if it were conceded that the sprinkling is a part of the provision for ventilation, still, if the neglect of this duty was the proximate cause of the explosion, a cause of action would be stated. As we read the clause, however, it is a distinct statutory duty, disconnected from the subject of ventilation proper, and the more is this true under a complaint, which alleges that such a condition is in itself dangerous. We must assume that the legislature so viewed it, and had a purpose in view-in enacting the statute, and that the purpose was to provide against this particular element of danger. Certainly it is as specifically enjoined to be done as any other thing embraced in the statute. It is required, irrespective of the subject of ventilation; and this being so, it was manifestly enacted for the benefit of appellee and others employed in the mine. That is the test. Indiana, etc., Coal Co. v. Neal, supra, and cases cited. The case last cited lends no support to the contention of appellant, that the sprinkling clause has no application.

It is next urged that neither paragraph of complaint is sufficient, because it does not show that the failure to sprinkle the mine was the proximate cause of the explosion which caused the injury to appellee. It is expressly averred in the first paragraph “that if said defendant company had performed its duty, by regularly and thoroughly sprinkling said dust on and before the date of the explosion, the accident, and injuries herein complained of would not and could not have occurred, and that they did occur solely and proximately by reason of its neglect in that behalf.” The fact could hardly be more directly stated.

4. It is next urged that if the servant, with full knowledge of the facts, and understanding the risks occasioned thereby, in the absence of any promise by the master to remedy them, consents to remain in the employ of the master, he voluntarily incurs such increased risks. The rule is, that where there is a neglect of a statutory duty, the assumption of risk does not apply by continuing in the service, and it is not necessary to negative knowledge of the danger. Inland Steel Co. v. Yedinak (1909), 172 Ind. 423; Cleveland, etc., R. Co. v. Powers (1909), 173 Ind. 105; Fort Wayne, etc., Traction Co. v. Roudebush (1909), 173 Ind. 57; United States Cement Co. v. Cooper (1909), 172 Ind. 599; Miami Coal Co. v. Kane (1910), 45 Ind. App. 391; Cook v. Ormsby (1910), 45 Ind. App. 352; Chandler Coal Co. v. Sams (1908), 170 Ind. 623; Chicago, etc., R. Co. v. Lawrence (1907), 169 Ind. 319; Green v. American Car, etc., Co. (1904), 163 Ind. 135; Hymera Coal Mining Co. v. Mahan (1909), 44 Ind. App. 583; Nickey v. Dougan (1905), 34 Ind. App. 601; American Car, etc., Co. v. Clark (1904), 32 Ind. App. 644.

5. It is averred that in mining coal, blasting is necessary, and that it is the customary, well-recognized and well-known practice, and that such practice was so acted upon by appellant and the miners, and that the accident would not and could not have occurred but for the dust-laden air, which exploded in the usual course of the business of mining, hence the dust must be regarded as the efficient or proximate cause of the explosion and injury. Chicago, etc., R. Co. v. Dinius (1908), 170 Ind. 222, and cases cited.

It is the contention of appellant that the injury did not occur from an explosion of coal dust, but from the use of excessive quantities of blasting powder in too quick succession, and that there can be no such thing as an explosion of coal dust, and that there is an entire lack of evidence to support the averments of the complaint. As we shall hereafter show, the evidence is not in the record, and the jury found that the injury was caused by an explosion of dust.

6. An attack is made upon certain instructions in the case. Such attack is sought to be met by appellee, on the ground that the instructions are not in the record, the specific objection being that the instructions are sought to be brought into the record without a bill of exceptions, and that the instructions claimed to have been given are not signed by the judge, as required by the statute, when that means is employed in bringing instructions into the record. The record discloses that at the close of the series of instructions requested by plaintiff, there is a memorandum signed by the judge and dated December 31, 1908, showing that the court had determined, before instructing the jury, to give each of the instructions requested by plaintiff, numbered from one to twenty-three, inclusive, and this memorandum is followed by a formal memorandum, signed by defendant’s attorneys, and dated December 31, 1908, excepting to the giving of each of the instructions numbered from one to twenty-three, inclusive. At the close of the instructions requested, by defendant is a memorandum in writing signed by the judge, and dated December 31, 1908, showing that he had determined before instructing the jury to give all of the instructions except fourteen, twenty-two, twenty-two and one-half and twenty-three, and following this is a formal exception by defendant to the refusal to give each of those instructions, signed by its attorneys, and dated December 31, 1908. Instructions one and two, given by the court on its own motion, are signed by the judge. This was a full compliance with the statute (§561 Burns 1908, Acts 1907 p. 652), and the instructions are properly in the record.

7. It is also insisted by appellee that the evidence is not in the record, and hence the instructions cannot be considered. This insistence is based on the fact that the motion for a new trial was overruled on March 13, 1909, and 160 days were given in which to prepare and file a bill of exceptions. It is claimed that before the expiration of the 160 days, in vacation, appellant procured an extension of time to 190 days from March 13, 1909. It is contended that, under §661 Burns 1908, Acts 1905 p. á5, providing that “if the extension of time is granted by the judge in vacation, such action may be indicated by a recital in the bill of exceptions itself, but if such extension is granted in term time, the same may be indicated by an order of court, duly entered on the order-book,” such an extension, procured in vacation, can be shown only by the bill. This language is insisted upon by appellee as exclusive in either case. There was a vacation order-book entry, signed by the judge, showing the granting of the extension. On September 18, 1909, there was an order-book entry reciting the tender of the bill of exceptions “within the time heretofore allowed by the court, and as extended by the judge in vacation,” and reciting the signing and filing of the bill. The bill itself recites that “on September 18, 1909, and being within the time heretofore allowed, as extended by the order of the court, defendant in this cause, the Vandalia Coal Company, here tenders this bill of exceptions containing all the evidence in this cause,” etc. The bill is signed by the judge, and was ordered made a part of the record in the cause that day. Its filing on the same day is shown by the record. Its identity is certified by the clerk.

8. Prior to the enactment of §661, supra, no extension was authorized, and the recital in a bill of exceptions as to the time given in the first instance for filing was insufficient, as that fact could only be shown by an order-book entry. Rose v. State (1909), 171 Ind. 662.

7. 9. 7. The provision is a radical departure from the recognized practice, and grows out of the necessity for it in case of an extension of time in vacation; but as an innovation upon the statute, it will not be carried beyond the necessity from which it arises. In all other cases, the time for filing bills of exceptions must still be shown by the order-book. The language — “may be shown by a recital in the bill itself” — in case of an extension in vacation, and — "in term may be indicated by an order of court” —creates a new and permissive right, and the statuatory direction must be followed. The reason is, that there is no authority in such cases for order-book entries of the judge’s action in vacation. The court can only speak in the manner pointed out by statute, and that is, so far as the vacation extension is concerned, by a recital in the bill itself, while as to term extensions the order-book must speak. If the vacation order cannot be looked to, then there is no order-book entry, and nothing in the bill extending the time. In the term entry and in the bill itself it is recited that the time had been extended, but for how long does not appear. The recital is of no force. Wood v. Ohio Falls Car Co. (1894), 136 Ind. 598; Orton v. Tilden (1887), 110 Ind. 131.

10. The right to obtain extensions for filing bills of exceptions in vacation, or in term, is purely statutory, and the statute must be complied with by one who seeks to make avail of it. There may be as much reason that a bill of exceptions should recite the fact of the giving of time in which to file it, as that the order-book entry should show such fact; but it has been uniformly held that it could not be so done. And so here, the statute, marking a distinction between term and vacation extensions, and creating a new, permissive right, should receive a construction in harmony with the recognized practice, and require the vacation proceedings to be shown by the bill. We think that is the meaning and intent of the statute. With the evidence not in the record, we are precluded from considering the instructions, unless an instruction is radically wrong under any evidence admissible under the issues. Chicago, etc., R. Co. v. Fretz (1910), 173 Ind. 519; Cleveland, etc., R. Co. v. Rudy (1909), 173 Ind. 181.

Instruction twenty-three is as follows: "If you find for the plaintiff in this case, it will be your duty to award him such damages as will fairly and reasonably compensate him for the injuries received, if any, which he has sustained. In determining the amount of damages, if any, to which plaintiff vrauld be entitled, as flowing proximately from the accident complained of, it is your duty to take into consideration his age, his condition in life, the physical pain and mental anguish, if any, which he suffered, decide whether his injuries are temporary or permanent, and whether any deformity, marks or scars, resulted from the explosion; whether his earning capacity has been reduced, and what effect, if any, his injuries will have on his earning capacity in the future; what moneys, if any, he may have been compelled to expend in medical treatment, medicine and nursing;' what wages, if any, he has lost by reason of his injuries, and, in short, to award him such an amount, if he is entitled to recover, as will reasonably and fairly compensate him for the injuries and damages, if any, which he has sustained.”

11. Two objections are urged to this instruction, which was the only one given upon the subject of fixing the damages. There is no other instruction specifically restricting the jury in its consideration to the evidence upon that subject. The first objection is that the instruction does not confine the jury to the evidence in estimating the damages. With one possible exception, hereafter noticed, the instruction states the proper elements of damages. An instruction is sufficient, in that particular, that tells the jury, directly, or in substance, that it must determine from the evidence any question submitted to it. Aspy v. Botkins (1903), 160 Ind. 170; Johnson v. Gebhauer (1902), 159 Ind. 271; Harness v. Steele (1902), 159 Ind. 286; Broadstreet v. Hall (1907), 168 Ind. 192, 10 L. R. A. (N. S.) 933, 120 Am. St. 356.

In this case there are instructions directing the jury generally that it must determine the issues upon a preponderance of the evidence. Instructions that have been held harmful, and that constitute reversible error in that particular, were affirmative instructions, directing the jury to take into consideration all the facts and circumstances, and the like expressions, or including improper elements, without limiting the inquiry to the evidence, or to the evidence upon a particular point. See Chicago, etc., R. Co. v. Fretz (1910), 173 Ind. 519; Chicago, etc., R. Co. v. Sykes (1880), 96 Ill. 162; Monongahela River, etc., Co. v. Hardsaw (1907), 169 Ind. 147.

The following cases hold that an instruction is not harmful for lack of specific direction limiting the inquiry to the evidence: Thomas Madden, Son & Co. v. Wilcox (1910), 174 Ind. 657; Pittsburgh, etc., R. Co. v. Collins (1907), 168 Ind. 467; Ohio, etc., R. Co. v. Stein (1894), 140 Ind. 61; Louisville, etc., R. Co. v. Falvey (1886), 104 Ind. 409; Poland v. Miller (1884), 95 Ind. 387, 48 Am. Rep. 730; Pittsburgh, etc., R. Co. v. Sponier (1882), 85 Ind. 165; City of Indianapolis v. Scott (1880), 72 Ind. 198.

In the case last cited it appears that the instructions were not all in the record, but the opinion is grounded upon the language that “you [the jury] may find,” which was held fairly to imply a direction to find from the evidence, and the cases of Poland v. Miller, supra, Louisville, etc., R. Co. v. Falvey, supra, Ohio, etc., R. Co. v. Stein, supra, Pittsburgh, etc., R. Co. v. Collins, supra, and Thomas Madden, Son & Co. v. Wilcox, supra, are founded on the same implication. Conceding that damages can lawfully be assessed only under the evidence, if the instruction states the correct elements of damages, and there is evidence upon all the elements stated, no harm could be done by the failure of the instructions to restrict the consideration to the evidence. Rice v. City of Des Moines (1875), 40 Iowa 638.

12. The instruction before us falls within the last class, and does not constitute reversible error, unless it is objectionable within that rule by reason of the language instructing the jury to take into consideration “his condition in life,” which is the second objection urged. It must be conceded that if “his condition in life” refers to anything other than his physical condition arising from the injury, the instruction would be bad. The worldly condition of parties, such as poverty or riches, whether possessed of property, whether married or single, or having a family, large or small, the number and ages of the members thereof, the standing of the parties, whether dependent upon self-support, etc., should not be considered. Pennsylvania Co. v. Roy (1880), 102 U. S. 451, 26 L. Ed. 141; National Biscuit Co. v. Nolan (1905), 138 Fed. 6, 70 C. C. A. 436; Alabama, etc., R. Co. v. Carroll (1898); 84 Fed. 772, 28 C. C. A. 207; Union Pac. R. Co. v. Hammerlund (1905), 70 Kan. 888, 79 Pac. 152; Maynard v. Oregon R. Co. (1904), 46 Ore. 15, 78 Pac. 983, 68 L. R. A. 477; Nutt v. Southern Pac. Co. (1894), 25 Ore. 291, 35 Pac. 653; St. Louis, etc., R. Co. v. Adams (1905), 74 Ark. 326, 85 S. W. 768, 86 S. W. 287, 109 Am. St. 85; International, etc., R. Co. v. Goswick (1905), 98 Tex. 477, 85 S. W. 785; Davis v. Kornman (1904), 141 Ala. 479, 37 South. 89; Moody v. Osgood (1868), 50 Barb. 628; Macon, etc., R. Co. v. Winn (1858), 26 Ga. 250; Sun Life Assur. Co. v. Bailey (1903), 101 Va. 443, 44 S. E. 692.

These and similar conditions are too likely to arouse the sympathy of juries to a degree beyond awarding compensation. It was held in the case of McCarthy v. Philadelphia, etc., R. Co. (1905), 211 Pa. St. 193, 60 Atl. 778, that evidence as to the occupation and compensation, and that a party is not able to follow his or her occupation, does not fall within the rule that rejects evidence of worldly condition.

13. Juries are allowed a sound discretion in assessing damages, and while the courts may instruct as to the elements of damages, they cannot be defined and calculated with mathematical certainty. Railroad Co. v. Spence (1893), 93 Tenn. 173, 23 S. W. 211, 42 Am. St. 907 and notes.

14. The elements of mental anguish cannot be specialized or calculated, and hence must be left to the sound discretion of a jury. The damages must be those arising from pecuniary loss, in which physical condition and earning capacity at the time of the injury, and the effect of the injury upon such capacity, are necessarily involved, together with physical pain and mental anguish arising from the physical injury, and expenses, incurred in treatment, nursing, etc. (Pittsburgh, etc., R. Co. v. Montgomery [1898], 152 Ind. 1, 69 L. R. A. 875, 71 Am. St. 300), and not those arising from mental anguish from apprehensions (Maynard v. Oregon R. Co., supra). They cannot be fixed in disregard of established rules of law. Chicago, etc., R. Co. v. Fretz, supra; Collins v. Leafey (1889), 124 Pa. St. 203, 16 Atl. 765; International, etc., R. Co. v. Ormond (1884), 62 Tex. 274; Hawes v. Kansas City, etc., Co. (1890), 103 Mo. 60, 15 S. W. 751.

15. • Any other rule would result in an entirely erroneous basis for the assessment of damages, which is compensation in every case of this class. There can be but one rule. Indianapolis St. R. Co. v. Schmidt (1904), 163 Ind. 360; Shea v. Potrero, etc., R. Co. (1872), 44 Cal. 414; Malone v. Hawley (1873), 46 Cal. 409; Hinds v. City of Marshall (1886), 22 Mo. App. 208.

16. 12. 10. It is quite clear that evidence would not have been admissible to show anything as to appellee’s condition except his physical condition occasioned by the injury. In the absence of the evidence from the record, it may be that the evidence was restricted to his physical condition, or that the jury was informed by the court, so that it could not have understood the phrase "his condition in life” in any other sense than his physical condition, arising from the injury, and with this state of the record, we are bound to assume that the instruction was applicable to the evidence, and are required to indulge every reasonable presumption in favor of the instruction. Farris v. State (1901), 156 Ind. 224; Adams v. Vanderbeck (1897), 148 Ind. 92, 62 Am. St. 497; Reinhold v. State (1892), 130 Ind. 467.

12. The phrase “condition in life” is susceptible of such divergent views by different persons, and such different understandings of meaning, that it ought not be used in any case, and would result in a reversal if the evidence were in the record, and should fail to show that it could only have referred to physical condition, or that the jury was so admonished. Other questions are sought to be presented upon the evidence, which we are precluded from considering by reason of the state of the record.

17. The complaint alleges that appellee was badly burned about his hands, head, arms and body; that he was injured internally by inhaling the gases, smoke and dust; that he is permanently injured; that he suffered, and still suffers, great bodily pain and mental anguish; that he was unable to work for a period of many months, during which time he could have earned $5 or $6 a day; and that he expended $200 for medicine, medical aid and nursing. We cannot say, in the absence of the evidence, that the damages assessed are excessive, or such as to indicate that the jury was influenced by prejudice, partiality or corruption.

The judgment is affirmed.