Big Hill Coal Co. v. Clutts

• Decision Date: 06 November 1913
• Docket Number: 2,360.
• Citation: 208 F. 524
• Parties: BIG HILL COAL CO. v. CLUTTS.
• Court: U.S. Court of Appeals — Sixth Circuit

208 F. 524

BIG HILL COAL CO. v. CLUTTS.

No. 2,360.

United States Court of Appeals, Sixth Circuit.

November 6, 1913

The fellow-servant doctrine does not apply to an injury sustained by a master's breach of a nondelegable duty.

Helm Bruce and Grover G. Sales, both of Louisville, Ky. (Wm Marshall Bullitt, of Louisville, Ky., and Chester Gourley, of Beattyville, Ky., of counsel), for plaintiff in error.

J. M McDaniel, of Beattyville, Ky., and O'Rear & Williams, of Frankfort, Ky., for defendant in error.

Before WARRINGTON, KNAPPEN and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

Suit was brought in the Lee county circuit court of Kentucky, and removed to the court below, where defendant in error (called herein 'plaintiff ') recovered a verdict and judgment against plaintiff in error (referred to herein as 'defendant'), and error is prosecuted. The action was for wrongful death of plaintiff's decedent and was heard and disposed of upon issues of alleged negligence and contributory negligence. Motion was made at the close of plaintiff's evidence, and again at the close of all the evidence, to direct a verdict for the defendant, and both motions were overruled. The death occurred in the coal mine of the defendant.

The deceased was working at the request of his grandfather, who, under contract with defendant, had undertaken to do the work involved in mining the coal. The answer contained a denial that deceased was in the employ of defendant, but counsel do not appear to have treated this as material, as clearly they could not, because of defendant's assent to the employment through the supervision and control it exercised over the work and its direct payment of decedent's wages. Paducah Box & Basket Co. v. Parker, 143 Kv. 607, 608, 609, 136 S.W. 1012, 43 L.R.A. (N.S.) 179.

The decisive question, and the relevancy or not of decisions relied on by defendant, will be better understood and more easily determined by observing the condition and the surroundings of the place where the accident occurred. The deceased was killed in a cross-entry by the fall from its roof of a block of slate, called a 'horse-back.' This cross-entry extended from the main entry about 321 feet. Its width was 10 feet except near the head, where it was somewhat wider than usual, which probably had the effect of weakening the roof. The entry was of the ordinary height of 6 feet for a distance of 285 feet from the main entry, and, in consequence of the dangerous condition of the roof, the height of the entry for most of the remainder of the distance was increased and the part taken down removed from the entry, but nothing was done to the portion embracing the 'horse-back' and nearest the head of the entry. It was this latter portion that fell and caused the death. Concededly the first 285 feet of the cross-entry had been approved and accepted by the defendant, but not the rest; and the scene of the controversy is within this portion. It is not contended that this was not of the dimensions requisite for approval and acceptance. Approval and acceptance were formally signified by semimonthly payments of wages, and some of the work in the part last described was done after the last pay day. It is undisputed that the work on this part was done, like all the entry work, under the supervision and direction of the mine foreman, Lunce, who testified that he 'had charge of the mine.' It was under his order and direction that the portion of the roof before mentioned was removed. His attention was also called to the presence of the 'horse-back,' but he pronounced that part of the roof safe. For all practical purposes all work on this portion was completed, and a track was laid throughout the length of the cross-entry, including the portion in question, and a car put in operation for the removal of coal and slate, before the accident.

The work of driving the entry beyond the end of the track was continued. After removal of the coal for a short distance beyond, a blast was fired in the overhanging slate, which resulted in leaving the debris to be removed; and at the time of the accident deceased was engaged in carrying pieces of this slate to and loading them upon the car. It is a mistake to suppose, as counsel do, that the work deceased was doing, within the space about the car where he was killed, was either opening that place for work or making it safe. It should constantly be remembered that the work of the deceased within that space was simply to use it as a passageway to carry material to the car; and the decisions upon which counsel rely are inapplicable for that reason.

The inquiry at last is whether within the purview of the master's duty this was a safe place to work.

In the solution of this question we concur in and rest our decision on the opinion rendered by Judge Cochran upon his denial of the motion for a new trial; and in thus disposing of the case we stop to say of the claim that the fellow-servant doctrine is controlling (even assuming that the question was raised by exception to the general charge or by request to charge) that it is irrelevant to the doctrine of nondelegable duty. Scendar v. Winona Copper Co., 169 Mich. 665, 669, 135 N.W. 951; Illinois Cent. R. Co. v. Hart, 176 F. 245, 100 C.C.A. 49. The portions of the opinion below, which specially bear on the present question, follow. ^[1] The judgment is affirmed, with costs

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Notes:

^[1] The main ground upon which a new trial is sought is that I erred in not sustaining defendant's motion for a peremptory instruction made at the close both of plaintiff's and defendant's evidence. It is claimed that defendant was entitled to such instruction because the defendant owed the decedent no duty to look after the safety of the roof of that portion of the entry which fell and killed him. I do not understand that it is claimed that if defendant owed decedent such a duty there was no sufficient evidence of a breach of that duty to carry the case to the jury.

It is trite in the law of master and servant that the former owes the latter the duty of exercising reasonable care to provide a reasonably safe place in which to work. Mr Freeman, in his note to Wellston Coal Co. v. Smith, 87 Am.St.Rep. 559, as to the application of this rule to miners says:

'The necessity of this rule and the importance of the duty it imposes is in every case apparent, but in no connection more so than when applied to the relation existing between a mine owner and his employes. The peculiarly hazardous conditions under which the work must necessarily be prosecuted make it of the first importance that the employer be required to use all reasonable means to provide a safe place for its performance and the principle is established by almost innumerable authorities that it is the duty of a mine owner to use all reasonable care and diligence to furnish his employes with a safe place for the performance of their duties.'

And in the case of Union Pac. Ry. Co. v. Jarvi, 53 F 65, 3 C.C.A. 433, Judge Sanborn said:

'Obviously, a far higher degree of care and diligence is demanded of the master who places his servant at work digging coal beneath the overhanging masses of rock and earth in a mine than of him who places his employe on the surface of the earth, where danger from superincumbent masses is not to be apprehended. A reasonably prudent man would exercise greater care and watchfulness in the former than in the latter case, and, throughout all the varied occupations of mankind, the greater the danger that a reasonably intelligent and prudent man would apprehend, the higher is the degree of care and diligence the law requires of the master in the protection of the servant.'

It would seem that if the room in which the miner is digging coal was not all made by him and he has been put to work therein by the mine operator after it has been partially made by other miners, as to the portion then so made the exception has no application. Such portion has been furnished to him by the mine operator and not by himself. This was so held in the case of Western Coal & Min. Co. v. Ingraham, 70 F. 219, 17 C.C.A. 71, where Judge Caldwell said:

'Whatever may be the duty of coal miners with reference to timbering the slopes and roofs of the rooms from which they remove coal, the rule is well settled that, after a mine is once opened and timbered, it is the duty of the owner or operator to use reasonable care and diligence to see that the timbers are properly set, and keep them in proper condition and repair.'

Of course, where the same conditions exist in other parts of the mine the exception should apply as much there as it does to the miner's room. Mr. Freeman, in the note heretofore referred to, thus states this exception without reference to whether it applies to the miner's room or elsewhere (87 Am.St.Rep. 566):

'This rule that the mine owner is bound to use all reasonable care to render safe the place furnished by him to the employes is applicable only where the place in which the latter are at work is such that it can be said to be a place furnished by the mine owner. When, therefore, the employes are engaged in making their own place the rule does not apply. Where, for instance, miners are engaged in cutting down or blasting out the face of a drift, it would be entirely unreasonable to demand of the owner that immediately after each blast he make safe the place which the explosion has created. In such case the miners may with reason be said to furnish their own place. The character of the place is continually changing by reason of the work itself. It is, therefore, uniformly held that as to those places which the employe in the progress of his work furnishes for himself it is his duty and not that of his employer to use reasonable

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