Angel v. Jellico Coal Min. Co.

• Decision Date: 02 June 1903
• Citation: 74 S.W. 714,115 Ky. 728
• Parties: ANGEL v. JELLICO COAL MIN. CO.
• Court: Kentucky Court of Appeals

74 S.W. 714

115 Ky. 728

ANGEL v. JELLICO COAL MIN. CO.

Court of Appeals of Kentucky.

June 2, 1903

Appeal from Circuit Court, Whitley County.

"To be officially reported."

Action by James Angel against the Jellico Coal Mining Company. Judgment for defendant. Plaintiff appeals. Reversed.

C. W Lester, for appellant.

Tye &amp Denham, for appellee.

SETTLE J.

This action was instituted by appellant in the Whitley circuit court to recover of appellee damages for personal injuries alleged in the petition to have been sustained by an explosion of dynamite which servants of appellee, in a different line of service to that in which appellant was engaged, had negligently placed near and in front of the fire of a furnace in the air shaft of its mine, that appellant, as its servant, was required to keep up. It is also averred in the petition that the dynamite was put in front of the fire to thaw, the heat of which caused it to explode, and that it was a very dangerous explosive, though its dangerous character was at the time unknown to him, but was known to appellee's servants who placed it near the fire. The answer denies the negligence complained of in the petition and, in addition, alleges contributory negligence on the part of appellant, which latter plea is controverted by reply. Upon the conclusion of appellant's evidence, the jury, in obedience to a peremptory instruction from the court, returned a verdict for appellee. Appellant complains of the giving of the peremptory instruction by the lower court, and of its refusing him a new trial, and by this appeal asks relief at the hands of this court.

It appears from the evidence that one Gofford was the foreman of the appellee, and in control of its servants charged with the duty of track-laying in the mine, and that, in the performance of that work, dynamite was used in removing slate and other obstructions. It was used for no other purpose in the mine, and was under the exclusive control of Gofford, who sometimes caused it to be placed in front of the furnace fire to thaw. The furnace fires were kept up by appellant, who testified that he had never used dynamite, or seen it used, but that he was afraid of its exploding in the process of thawing, and expressed his fear of it to Gofford, and also to John and Howard Jenkins, each of whom had occasionally placed it near the furnace fire. But they assured him that there was no danger of an explosion, and John Jenkins said it could not explode unless there was a cap on it. It also appears that the dynamite that caused appellant's injuries was placed before the fire by Howard Jenkins, one of Gofford's hands, by the latter's direction. It does not appear that appellant saw or knew of its being so placed on that occasion, but it is not material whether or not its presence was known to him. The explosion occurred while appellant, Howard Jenkins, and other employés of appellee then present, were eating their noon meal. Appellant's neck and shoulders were wounded, and his hand badly burned, by the explosion. In fact, his injuries caused thereby were so serious and painful as to compel him to keep his bed for more than a month, and his hand was so injured that he has never since been able to close it, and that member is therefore permanently injured.

It is the duty of the master to supply the servant with reasonably safe and suitable tools and machinery to perform the work required of him, and equally his duty to furnish the servant a reasonably safe place to work, and to see that it is kept so. Appellant in undertaking for appellee the work of keeping up the furnace fires in the air shaft of its mine, assumed the risks that are necessarily or usually incident to such service,...