A Widow, Five Children, and the Company That Shut Off the Fan

The latest of the series of damage suits growing out of the Franklin mine disaster of August 24, 1894, was on trial before Judge Osborn yesterday, and bids fair to go to the jury today. It is the case brought in the name of Mrs. Pugh and her five children, one a girl of 11, for the death of husband and father. The case yesterday made good progress, all the testimony for the prosecution having been introduced shortly before 5 o'clock, when the defense moved for a non-suit.

The attendance at the trial was unusually heavy for a case in the civil department, and nearly every chair was occupied. In the front row were seated several of the women whose husbands died in the disaster, each of them in black, and some of them caressing their children. In the other seats were miners, who paid the closest attention to the proceedings. Among those in the courtroom were Mrs. Pugh, Mrs. Hall, Mrs. Reese, Mrs. Hooker, Mrs. MacPherson, Tom Hall, Jack Phillips, Jim Cave, Will Cook, T. Daniels, James O'Brien, Robert Washington, Smalley, John Snyder, John Morgan, David Bowes, Israel Stevens, G. M. Herbert, Carmen O. Emanuel, John Adams and David Edmonds, the latter the state mine inspector.

The jury was obtained with no very great difficulty. It is made up as follows: D. H. Bicknell, James Collins, W. H. Hanks, H. J. Hunt, Charles E. Carpenter, W. J. Shinn, Frank Leidd, F. J. Gingan, M. J. J. Hays, J. G. Wise and F. A. Marshall.

The first witness to go on the stand was Israel Stevens, who was with Pugh through the slope when the alarm was given. Stevens was a few feet in advance of Pugh and escaped, while his companion was overcome by choking smoke. Stevens' testimony, together with that of the other witnesses, was to the effect that the shutting off of the fan at the top of the slope was the main reason why the men were caught by the smoke and fire.

The defense endeavored to bring out as its point that Pugh did not heed the warning given by the superintendent, and that he could have escaped had he hurried out after Stevens; therefore that he took the risk upon himself and was guilty of contributory negligence. This position was made the basis of the motion for a non-suit.

In passing upon the motion and denying it, Judge Osborn said: "The motion places upon the court the task of measuring time. The evidence shows that Stevens and Pugh were near each other. The question arises, how far was Pugh behind him? The court is unable to say. If Pugh remained there until the smoke overtook him he was guilty of contributory negligence; but the question occurs, can the court say what should be the lapse of time between the calling out to the men and the shutting down of the fans? Undoubtedly the company had the right to shut down the fan, but it was the duty of the company to give time for the men to get out of the mine. After the warning, the men could not remain with the expectation that the fan would continue going while the fire burned immediately; but the company had not the right to stop the fan until there had been reasonable time for the men to escape. The company would not have the right to shut its property against the lives of the men, but it would have the right to its property after the men were safe. The question of time is a question of fact. I do not believe that the court has the power to determine whether the deceased was guilty of contributory negligence."

After denying the motion, Judge Osborn ordered an adjournment until 9:30 o'clock this morning.