The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1913-04-15
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to such working places, when it's presence
would have been disclosed by examina-
tons such the statute requires.
4. While 1T is the duty of the state
mine inspector to see that all the provis-
ions of the act to protect the health and
safety of mine workers aere observed and
strictly carried out (Gen. Stat. 1903, sec.
1888, neglect on his part to require the
appointment of a fire boss in a mine
generating fire damp does not justify or
excuse the failure OF the mine owner or
operator to do So
.. Section 1887 of the General Statutes
OF 1903, requiring bore holes to be kent
not less than II feet in advance of the
races of working places of a coal mine
When driven toward and in DANGEROUS
proximity to an abandoned mine suspect
ed of containing inflammable gases. rec
ognlzes that abandoned coal mines in
Kansas do generate and NAV accumulate
such gases and the courts are authorized
to take judicial notice of the fact
o.. Inc word suspected in the section
Just referred to has its usual and ordinary
Slgn1f1cation. 1t does not necessarily in
Volve knowledge belief or likelihood:
and If a person responsible for compliance
with the statute entertain even a slight
or vague idea of the existence of inflam-
mable gases in an abandoned mine, no
matter how it arose, whether on weak
to take action is imperative under the
statute.
I. section 1892 of the General Statutes
OF 1909, giving a right Of action for "any
violation" of the mining act or any twill
full failure to comply with its provisions
prescr1bes single standard of liability,
embracing voluntary acts done in VIOLA
ton of the statute and voluntary fnaction
when the statute requires something to be
done.
g. In the case of omissions neither had
purpose nor determined obstinacy is es-
sential to create liability, and If one
charged with the duty to observe the sta
tute Intentionally suffer mining operations
to proceed without taking prescribed pre-
cautionary measures. he is guilty of a
w1llful failure within the meaning of the
law.
9. The obligation imposed by section
1887 is not discharged by ordering bore
in advance of the faces of working places.
Bore holes must be drilled and kept drill
ed to the proper depth or willful failure
to comply with the law occurs.
10. The requirement of the section lust
referred to is satisfied if II foot bore
holes are kept drilled in advance of the
essary that bore holes be drilled a rea-
sonable distance beyond II feet, although
by so doing danger might be discovered
IL. Assumed risk and contributory
negligence are not defences to an action
prosecuted under the mining act for loss
of life occurring by reason of failure to
examine working places for fire damp
and failure to keep bore holes drilled in
advance when approaching an abandoned
mine.
II. The act providing for the health and
safety of persons employed in and about
the coal mines of Kansas does not abro-
gate the common law duty of coal mine
owners and operators to furnish their
employees safe places in which to work.
13. Causes of action under the mining
act and under the common law may be
joined and tried together.
A. Certain evidence offered by the de-
PENDANT considered and held, that material
prejudice did not result from it's exclus-
ion and that the defendant is not entitled
to have the rulings thereon reviewed be-
cause the evidence was not presented to
the trial court at the hearing of the mo-
ton for new trial. CIV. Code, Sec. 3o7,
Gen. Stat. 1903, Sec. 5901.)
Is. The evidence examined and found
verdict and special findings of the jury.
All the Justices concurrins.
A true copy.
Attest:
ISeall D. A. VALENTINE,
Clerk Supreme Court.
No. 1881
The Auto-Fedan Hay Press Company,
Appellant.
VS..
Gale Ward, Appellee.
Appeal from Marion County.
REVERSED.
Syllabus BY the Court. Smith, j.
1. Where a farm implement is purchased
under a warranty including provision
that If it does not work satisfactorily
the purchaser shall notify the seller who
may send an expert to adjust it and, if
the sellers expert or agents fail to make
it work satisfactorily, the seller Shali
take it back and refund the purchase
price, If paid; Held, that the purchaser
must test the machine fairly and, If 1t
does not comply with the contract, must
give the required notice and If the seller |
fails to make it work satisfactorily the |
purchaser must return the machine with |
in a reasonable time
2. What constitutes such reasonable !
time is a question of fact to be determined
from all the circumstances of the case
g. If at the time of this transaction, !
hay presses of different sizes and design |
ed to make different sized bales of hay |
question was of a smaller size and de- |
signed to make smaller bales than some |
of the others but worked satisfactorily in |
making the bales it was designed to |
make there was no breach of warranty il |
the press required more power when used |
to make larger bales.
All the Justices concurring.
Attest: d. A. VALENTINE,
(SealJ Clerk Supreme Court
No. 1891
The First National Bank of Smith Center, /
Appellant,
VS..
NJ w. Hardman and H. A. Selbe, APP
pellees.
Appeal from Phillips County.
REVERSED.
syllabus BY the Court Mason, }.
/. Where surety on note, who was
to become such by the assurance
Of the payee that its payment was to be |
fully secured by a chattel mortgage upon /
stock of merchandise, intended when he |
signed the note that the mortgagor should 1
be permitted to remain in possession of |