Consolidation Coal Co. v. Spradlin

• Decision Date: 16 January 1917
• Citation: 173 Ky. 229,190 S.W. 1069
• Parties: CONSOLIDATION COAL CO. v. SPRADLIN.
• Court: Kentucky Court of Appeals

190 S.W. 1069

173 Ky. 229

CONSOLIDATION COAL CO. v. SPRADLIN.

Court of Appeals of Kentucky.

January 16, 1917

Appeal from Circuit Court, Johnson County.

Action by W. E. Spradlin against the Consolidation Coal Company. From judgment for plaintiff, defendant appeals. Reversed for proceedings conforming to opinion.

O'Rear & Williams, of Frankfort, and Fogg & Kirk, of Paintsville for appellant.

John W Wheeler, of Paintsville, and C. B. Wheeler, of Ashland, for appellee.

CLARKE J.

On the Friday before the Tuesday upon which the accident complained of happened, appellee, who had had two years' experience in such work, began work with his brother-in-law, Blackburn upon a contract theretofore made with appellant, to construct a break-through between two air passages in a coal mine. Their duties were to cut, shoot down, and load out the coal in the break-through, which was about 3 1/2 feet high, about 9 feet wide, and the distance between the air passages was 25 or 30 feet. A breast machine was used in making the cuts across the face of the coal, which made a cut about 4 1/2 feet deep. Two such cuts had been made by other parties, and the coal shot down and removed, when appellee and Blackburn began work, so that about 9 feet of the break-through had already been constructed. Appellee and Blackburn had made one such cut across the face of the coal, shot down and removed the coal, and had made a second cut, shot down the coal, and were engaged in removing same, when, while appellee was loosening the coal with a pinch bar at the face, a large piece of slate fell from the roof, some 3 or 3 1/2 feet back from the face which struck and broke one of appellee's legs, as a result of which he was confined in a hospital for a time, and the broken leg has been left about 1 1/2 inches shorter than his other leg, and continues to give him pain and interfere with his work. To recover for these injuries alleging that they resulted from the negligence of appellant in failing to furnish and maintain a reasonably safe place in which for him to do his work, appellee filed this action and recovered a judgment against appellant for $1,000; and appellant has appealed from that judgment, basing its right to a reversal upon the sole ground that the trial court erred in refusing its offered instruction upon the question of contributory negligence.

As the slate which struck appellee and inflicted his injuries fell from the roof about 3 feet from the face of the coal, and as appellee had extended the break-through by the two cuts of 4 1/2 feet each, or about 9 feet in all, it is apparent that the slate fell from that part of the roof which had been exposed by appellee's work, and was a result of a failure to keep the place safe during the progress of the work rather than from a failure of appellant to make the place safe in the beginning. An issue was made in both the pleadings and the proof as to whose duty it was to keep the place safe as the work progressed. Ordinarily that duty, in such work, is upon the employé who shoots down and loads the coal, but, to avoid that consequence for his work in this instance, appellee alleged, and offered proof in support thereof, that, by the contract under which he was working, appellant had assumed that duty, and that, in doing such work as was reasonably necessary to keep the place in a reasonably safe condition, he was working under the orders of the mine boss. This theory of the case was presented to the jury by instruction No. 1, which stated, concretely, appellee's right to recover.

The instruction given upon contributory negligence, which was appellant's only affirmative defense, does not state in concrete form the acts of appellee, shown in the evidence which would constitute contributory...