#### Muddy Valley Mining & Manufacturing Company v. Herman Phillips.

Master and Servant—Negligence of Master—Personal Injuries—Explosion of Gas in Mine—Miners' Lamps—Ventilation—Act of 1887— Evidence—Instructions.

1. It is for the jury to say from the evidence in a given case whether the admitted failure of the defendant to perform his statutory duty was wilful. .

2. In an action by an employe to recover for personal injuries suffered through the alleged negligence o± his employer, a mining corporation, this court holds that through the wilful neglect of its statutory duty, a dangerous accumulation of gas took place, whereby the plaintiff was injured, and declines to interfere with the verdict in his behalf.

[Opinion filed February 2, 1891.]

Appeal from the Circuit Court of Jackson County; the Hon. O. A. Hajrker, Judge, presiding.

Messrs. Green & Gilbert, and Youngblood & Barr, for appellant.

*377Mr. William A. Schwartz, for appellee.

Green, J.

Appellee was employed in the coal mine operated by appellant and was burned and seriously injured by an explosion of gas in its mine. The gas exploded by taking fire from the lighted lamps worn in the caps of'appellee and another miner, whom he was then assisting to move a platform used to catch the coal and prevent it J.'vom tailing into the mud and water, as it was blasted from the side of the entry and to provide a more convenient means for handling and loading the coal. This platform was made of planks, and was moved as the work of blasting coal progressed. Appellee was employed to work by the day, and on the morning he was injured had been working about fiAy or sixty yards distant from the place of accident, loading rock, and had gone for oil for his lamp to the oil room, near said place; had filled his lamp and started back when he was called by the miner to assist in moving the platform, which he did, and while so engaged the explosion occurred. The foreman of appellant, in charge of the men, had told appellee to assist any of them when assistance was needed, and he was acting in compliance with this order when injured. To recover damages for his injuries, appellee brought this suit, and judgment for $638 and costs was entered in his favor, to reverse which this appeal was taken. The right to maintain this suit is based upon these provisions of the act in force July 1,1887: a The owner, agent or operator of every coal mine, whether operated by shaft, slope, or drift, shall provide and maintain for every such mine a good and sufficient amount of ventilation for such men and animals as may be employed therein, the amount of air in circulation to be in no case less than 100 cubic feet for each man and 600 cubic feet for each animal, per minute, measured at the foot of the down cast, * * * and said volume of air "shall be forced and circulated tó 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. * * * All mines in which men are employed shall be examined every morning by a duly authorized *378agent of the proprietor to determine whether there are any dangerous accumulations of gas, or lack of ventilation or obstructions to roadways or any other dangerous conditions, and no person shall be allowed to enter the mine until such examiner shall have reported all the conditions safe Fr beginning work.”

The ~vidence shows the mine of defendant was operated by shaft; that on November 15, 1888, defendant leased the mine from William P. Fallida1' and continued to operate it from that date up to and at the time of appellee’s injury on April 5, 1889. Forty men and three mules were then employed; rooms had been opened, coal was mined, transported to the shaft, hoisted to the surface. and several car loads were shipped daily; and Marion 0. Wright, the president of defendant company, testified said company was operating the mine April 5, 1889; such being the facts, the statute imposed upon the defendant the duty to provide the given amount of air per minute, measured at the bottom of the down cast, and force and circulate it to the face of every worlcing place throughout the mine and by this means free the mine from standing powder, smoke and gases of every Icind. It was also defendant’s duty, under the statute, to cause its authorized agent to examine the mine every morning to determine whether there were any dangerous conditions, or dangerous accumulations of gas and report all the conditions safe for beginning work, and until that was done not to allow appellee or other employes to begin work in the mine. The performance of the statutory duties thus imposed was required to effect the purpose of the act: “ To provide for the health and safety of persons employed in coal mines;” and this case furnishes an examp le, as we think, of the necessity for such legislation and the enforcement of the law. Defendant failed to perform either of the duties required, and the jury were justified in finding by the evidence that the failure by defendant to comply with said provisions was wilful and caused the accident and injury to appellee. The defendant knew gas was usually found near and about a fault, as it is termed. It was from such a place the gas came, and he knew the fault *379was in the entry .at the time, and near the place appellee and the man he helped were at work. Other witnesses testified to the presence of gas in the coal there; moreover an instrument to detect the presence of gas was at the mine, but not used until after the explosion, and was then put in use". After the explosion air was forced and circulated into said entry by a method that would have been practicable before the explosion and would have probably freed the entry from gas and prevented the accident. In view of all the facts proven, it can not fairly be contended that the admitted failure by defendant to perform the statutory duties was not wilful. The jury so found, and it was a question to be determined by them from the evidence. Hawley v. Daily, 13 Ill. App. 394.

The court gave the jury four instructions on behalf of plaintiff. The first informed the jury what duties were imposed upon the owner, agent or operator of a coal mine by the statute, which was correctly quoted; but the criticism made by appellant’s counsel is that it omits the mention of the clause: “ For an injury to person or property occasioned by any wilful violations of this act, or wilful failure to comply with its provisions, a right of action shall accrue.” If this instruction had called for a finding against defendant, it would have been defective because of the omission; but as given, stated the law correctly, and was not calculated to mislead the jury. The remaining three instructions relate to the damages and the facts proper to be considered by the jury in assessing the same, in case defendant was found guilty, and we see no serious objection to either of them. It is further contended the court erred in refusing to give seven instructions requested on behalf of appellant. The first of these had already been given in defendant’s sixteenth instruction to the jury. The fourth refused instruction had also been given in defendant’s eighth instruction to the jury. The fifth refused instruction was also given in defendant’s fourth instruction to the jury and the seventh réfused instruction was given in defendant’s fifteenth instruction to the jury. The third and sixth refused instructions were properly refused. The principle embodied in the second refused instruction is sufficiently *380stated in several of the instructions given for defendant, although not in the same form, and in the seventeen instructions which were given on its behalf to the jury, no legal proposition stated in the form most favorable to defendant and that could have been in any manner applicable, seems to have been omitted. Our conclusion is, that the evidence established the facts that the place of injury was in a mine then being operated by defendant; that appellee was a man then employed in the mine bv defendant and was entitled' to the protection afforded by the performance of the duties. imposed by the statute (Coal Run Co. v. Jones, 19 Ill. App. 371); that defendant wilfully failed to perform its statutory duties and hence there occurred a dangerous accumulation of gas which took fire and caused the accident and injury to plaintiff charged in his declaration. We perceive no error requiring the reversal of the judgment and it is affirmed.

Judgment affirmed.