[No. 9232.

Department Two.

January 23, 1911.]

#### Joe Mrozevich, *Respondent,*v. Western Steel Corporation, *Appellant.*
      *1*

Master and Servant — Negligence—Safe Place — Coal Mine— Ventilation — Warning—Evidence—Sufficiency. The evidence sufficiently established that an explosion of gas in a coal mine was caused by a defective ventilating system and defective wiring, where it appears that the mine was never free from marsh gas, which is highly explosive when mixed with air in certain proportions, that before the accident the gas was coming in at a point that was very damp, that the insulation of the electric wiring was defective, whereby an arc was easily formed, a spark igniting the gas, that the explosion occurred at this point when no one was near, and from no other conceivable cause.

Negligence — Pleading and Proof — Trial. Evidence of negligence not alleged in the complaint, received without objection, will be considered on motion for a nonsuit.

Appeal — Review—Harmless Error — Evidence. Error in the admission of evidence of another explosion in the same mine is harmless, where on its appearing that the witness was not present, the evidence was stricken and the jury instructed to disregard it.

Master and Servant — Negligence—Safe Place — Coal Mine— Conditions — Evidence—Admissibility. In an action for injuries sustained in a mine explosion, evidence of a witness as to the condition of the mine three weeks later is admissible, when the witness was the first person to enter the mine after the explosion.

Damages — Personal Injuries — Excessive Verdict. A verdict for seven thousand dollars for injuries to a coal miner through an explosion is not excessive, where he was badly scarred and disfigured, his suffering was great, one of his hands permanently injured, his earning capacity was $100 per month, and will in the future be slight at manual labor, and he is ill fitted for anything else.

Appeal from a judgment of the superior court for Pierce county, Shackleford, J., entered July 7, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through an explosion in a coal mine.

Affirmed.

*669
      *Lyter <$f Folsom,*for appellant.

*Govnor Teats, Hugo Metzler,*and *'Leo Teats,*for respondent.

Reported in 112 Pac. 925.

Rudkin, J.

This was an action to recover damages for personal injuries. On the 6th day of December, 1908, the defendant was engaged in developing a coal mine at Ashford, in this state. The entrance to the mine was through a tunnel extending into the mountain side a distance of upwards of 4.000 feet. For the greater part of this distance the tunnel was constructed through rock, but for the last 400 feet it followed the vein of coal. The tunnel was ten feet wide and eight feet high, constructed on an incline of about one per cent. The mine or tunnel was ventilated by a system of fans and air boxes, and was lighted by electricity. For the first 3.000 feet, the air box was three feet ten inches by sixteen inches in dimensions ; for the next seven hundred feet, two feet ten inches by sixteen inches in dimensions; and from that point to a point within eighty feet of the face of the tunnel, the larger sized box was again used. From this latter point smaller boxes extended to within eight or ten feet of the face of the tunnel, with a nozzel extending upwards to catch or admit the gas. A fan was connected with the air box at the entrance, and a second one about 700 feet from the entrance. The wire conducting the electrical current into the mine was attached to the timbers at the side of the tunnel. On the above date the plaintiff and three of his coemployees, at work near the face of the tunnel, were severely burned and injured by an explosion of gas, and the present action was instituted in the plaintiff’s behalf to recover damages for the injuries by him received. From a judgment in favor of the plaintiff in the sum of $7,000, this appeal is prosecuted.

The principal assignment of error is based on the contention that there was no testimony tending to show actionable negligence on the part of the appellant, and that a nonsuit should have been directed at the close of the respondent’s *670testimony. It appears from the record, without apparent contradiction, that a form of gas, commonly known as marsh gas, was continually accumulating in the mine or tunnel, and that it came in in quantities at different places through-seams or fissures in the rocks and veins. This gas is lighter than the air and will naturally rise to the top of the tunnel among the timbers. When mixed with air in certain proportions it is highly explosive, and the mine was never entirely free from it. The testimony further showed that, for some days before the accident, this gas entered the mine in considerable quantities at a point about 135 feet distant from the face of the tunnel, where the men were at work; that the tunnel at this point was very damp or wet; that the insulation-on the wiring was there defective; that under such circumstances an arc could easily be formed; and that a spark from the wire would ignite the gas and cause an explosion. It further appeared that the explosion occurred at this point, that it could only result from the gas coming in contact with a flame or spark, and that there was no person at or near-the place of the explosion at the time .of its occurrence. It also appeared that the air boxes were leaky at different points, permitting the gas to escape therefrom, and that the box was not large enough to take up all the gas accumulating in the tunnel and driven to its face. Under this testimony, the jury was fully warranted in finding that the injury resulted' from a defective ventilating system and the defective wiring. In fact we do not see how a different conclusion could have-been reached.

It is said the complaint does not allege negligence in the lightiiig system, but the proof was received without objection, and must therefore be considered by this court on motion for nonsuit or directed judgment. An admission of counsel in one case cannot be accepted as proof in anothe.r, yet it is a significant fact that in the case of *Nelson v. Western Steel Corporation, post*p. 672, 112 Pac. 924, which arose-out of the same accident, counsel for appellant in open court *671admitted liability and questioned only the amount of the recovery. We think the record in this case fully justified the course pursued in the *Nelson*case.

We will now refer briefly to the remaining assignments of error. Error is assigned in the admission of testimony tending to show another explosion in the same mine some months before. After this testimony was admitted, it was made to appear that the witness was not present at the time of the former explosion, and his testimony was thereupon stricken from the record and the jury instructed to disregard it. The ruling was therefore harmless if erroneous. The ruling of the court admitting testimony tending to show the condition of the mine at the point where the explosion occurred, some three weeks after the accident, is also assigned as error. This testimony was given by the first person to enter the mine after the explosion, and it would seem immaterial whether it was three hours or three weeks after the accident, so long as the conditions in the mine remained unchanged. Errors are assigned in the charge of the court and in a refusal to charge as requested, but the charge as a whole was clear and specific and exceedingly fair to the appellant.

It is lastly contended that the verdict is excessive. The respondent was badly burned about the hands, arms, face, neck and back. His pain and suffering was necessarily great and long continued. He was badly scarred and disfigured, and will remain so through life. His hands were injured, one of them permanently so. His earning capacity at the time of the accident was upwards of $100 per month, and his earning capacity in the future will be slight at hard manual labor, and he is ill fitted for anything else. Under such circumstances, the verdict is neither unreasonable nor excessive, and the judgment is accordingly affirmed.

Dunbar, C. J., Chadwick, Crow, and Morris, JJ., concur.