
    Furnace Coal Mining Company v. Perry.
    (Decided November 9, 1926.)
    Appeal from Pike Circuit Court.
    1. .Master and Servant. — Recovery for injuries from breathing bad air . in mine held not supported by evidence.
    2. Master and Servant. — Evidence of foul air in mine held sufficient, to take case to jury, under scintilla rule.
    STRATTON & STEPHENSON and WILLIAM M. DUFFY for appellant.
    PICKLBSdMfER & STEELE for appellee.
   Opinion of the Court by

Commissioner Hobson —

Reversing.

J. M. Perry brought this action against the Furnace-Coal Mining Company, alleging that on January 14,1921, he was in its employment at its mines cntting -and loading-coal in one of its rooms assigned to him and that it failed to Ventilate the mine and negligently allowed poisonous or noxious gases to accumulate in his working place, by reason of which lie was permanently injured to Ms damage in the sum of $3,000.00. The allegations of the petition were denied, the case came on for trial before a jury, who found for the plaintiff in the sum of $500.00. The defendant appeals.

The plaintiff stated that he went to his room in the mine and had loaded about half a oar when he began to feel bad; he got hot and then began to smother and could not shovel; his heart hurt ;Ms back and his head hurt; he lay down and crawled out to the entry where there were some men and there he dropped down. They took him on the outside and after staying there several hours he went home and was sick for some days. He also proved by a physician that the symptoms he had were those produced by bad air in the mines. The only testimony as to the lack of ventilation was this as to the fan:

“Q. Did they keep the fan going all of the time? A. I don’t think that they did.
“Q. Do you know whether or not that they did? A. They did not; they would have to stop it on account of something getting hot about it. ’ ’

He also proved that a man who worked in the same room about a week later was taken sick in much the same way.

On the other hand, the defendant proved' by the doctor who treated him the next day that he had a bad cold and was suffering from bronchitis and not from bad .air. • The defendant and his son testified that the doctor said to him that if he had stayed there a little longer the air would have killed him. But the doctor denied making this statement, saying that he would have treated him differently if he had thought this. The defendant also proved by the superintendent and mine foreman that the plaintiff said at the mouth of the mine that he was sick from powder smoke, and it appears that if the miners go back in the room too soon after the firing of a blast this ' often happens. The defendant also proved by its witnesses that the fan was running-and nothing was wrong, with it that morning, and that the required quantity of fresh air was passing through the mine. The plaintiff gave no contrary evidence on this subject except his statement about the fan, and this only showed that the fan sometimes got out of order, but it did not show that the fan was out of order at that time.

There being no evidence that any duty imposed on. the defendant by the statute as to ventilation was not performed, the facts shown are not sufficient to warrant a verdict against the defendant. On all the evidence it seems as reasonable that he was sick from powder smoke as from bad air. Such symptoms as he had may come from bad air, but they may also come from powder smoke or other causes.

On the whole case the court is of the opinion that the verdict is not warranted by the evidence and that a new trial should be granted. There was a scintilla of evidence to take the case to the jury.

Judgment reversed and cause remanded for a new trial.  