Bell-Knox Coal Co. v. Gregory

• Decision Date: 21 February 1913
• Citation: 153 S.W. 465,152 Ky. 415
• Parties: BELL-KNOX COAL CO. v. GREGORY.
• Court: Kentucky Court of Appeals

153 S.W. 465

152 Ky. 415

BELL-KNOX COAL CO. v. GREGORY.

Court of Appeals of Kentucky.

February 21, 1913

Appeal from Circuit Court, Knox County.

Action by W. T. Gregory against the Bell-Knox Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

T. G Anderson, of Middlesboro, for appellant.

J. M Robsion and J. D. Tuggle, both of Barbourville, for appellee.

CLAY C.

Plaintiff W. T. Gregory, brought this action against defendant, Bell-Knox Coal Company, to recover damages for personal injury. The jury returned a verdict in his favor for $1,000. Judgment was entered accordingly, and defendant appeals.

Defendant operates a coal mine in Knox county. The mine is located on the side of a mountain, and the drift mouth or tunnel of the mine enters the mountain practically at right angles. Coal is carried from the mine by means of cars operated on a tram road. The tramroad emerges from the drift mouth and runs to the left along the mountain side for a distance of about 60 yards, and around what is known as the upper tipple, or "knuckle," a name given to it by the miners. From the drift mouth to the knuckle there is only one track. From that point on to the tipple there are two tracks, one on which the loaded cars are run to the tipple, called the "loaded track," and the other on which empty cars return from the tipple, called the "empty track." The cars are operated by means of a stationary engine, located near the track at the knuckle. As the empty cars are drawn from the tipple to the knuckle, the cable which is used to draw the cars winds around a drum, which then unwinds as the cars go by gravity from the knuckle into the drift mouth. The mine cars are about 9 feet long and about 4 1/2 feet wide. The bottom of the car is only a few inches from the ties. On each end of these cars is a bumper, a large iron piece about 12 inches one way and 16 inches the other. The cable by which the cars are operated is a rope about 1 inch in diameter. Attached to its end is an iron hook, weighing about 15 pounds. The man who superintends the movements of the cars in and out of the mine and fastens and unfastens the cable or rope, is called the "rope rider." The engineer in charge of the stationary engine operates the engine and cable on signals from the rope rider.

According to the evidence for plaintiff, he had for some time been engaged in rope riding and performing other work for defendant. For about 10 days or 2 weeks before the occasion in question he had not been rope riding. He was injured on the first trip that he made on the morning of the accident. Just before the accident he had assembled four cars for the purpose of returning them into the mine. He was on the front car, with one foot in the car and one foot on the bumper. He had disengaged the rope from the car upon which he was riding, and the car ran off the track at a point near the knuckle, and, running into an embankment near by, injured his foot. The bones of his heel and ankle were crushed. After the accident his foot and leg were placed in splints and kept in that condition for about eight weeks. Plaintiff says that he suffered intense pain for months after the injury, and at the time of the trial was still suffering. By reason of his injury he was unable to plow on his farm. Some three or four witnesses testified that, where the empty track led into the loaded track, one of the bolts that connected the bar rail to the tracks was out of place. One of the rails was loose, and had partially turned over. The ties were rotten, and would not hold a spike. The rails did not connect at the switch point, but the end of the loose rail projected out, and when the car got to the switch it struck the end of the projecting rail instead of passing onto the other track. In this way the car was thrown from the track. There was also evidence to the effect that it was not plaintiff's duty to inspect or repair the track. It is claimed that if he saw anything defective in the track, however, it was his duty to report it. There was also some evidence to the effect that the car, at the time of the derailment, was going at an excessive rate of speed, and that this was due to the fact that, although plaintiff signaled to the engineer to slacken the speed, the latter failed to do so.

The evidence of the defendant is to the effect that, though the ties of the loaded track were in bad condition, this condition in no way affected the empty track, on which the derailment took place. Witnesses for defendant also testified that, even though the point rail was out of shape and some times turned over, and this might affect loaded cars going out of the mine, it could not affect the empty track or the operation of the cars going over that track. Defendant also proved by certain witnesses that the customary way of riding a rope was for the rope rider to have both feet in the car. Defendant's superintendent claims that he warned plaintiff of the danger of riding with one foot on the bumper. Plaintiff denies this.

Upon these facts the court submitted the case to the jury on two issues: (1) The failure of the defendant to furnish plaintiff a reasonably safe place to work; (2) the gross negligence of the engineer in operating the car. We think the evidence was sufficient to justify the submission of the first issue to the jury; but, as to the second issue, a...