Billiter & Shurtleff Coal Co. v. Luster
| Decision Date | 20 November 1945 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Billiter & Shurtleff Coal Co. v. Luster. |
2. Master and Servant. — The duty of a mining company to furnish a servant a safe place for work depends on circumstances prevailing at time of injury and on the facts shown by the proof.
3. Master and Servant. — If there is any evidence of negligence of master and of its casual connection with injury, a case is made for jury, in servant's action for personal injuries.
4. Master and Servant. — In action by inexperienced miner for injury inflicted by falling slate, negligence of master in failing to furnish miner a safe place in which to work was for jury. KRS 342.410.
5. Appeal and Error; Damages. — In action by inexperienced miner for personal injury against master, evidence was insufficient to justify instruction on permanent injury, but error was not prejudicial, where the $500 verdict was no more than reasonable to compensate for injury sustained.
Appeal from Pike Circuit Court.
O.T. Hinton for appellant.
J. Erwin Sanders for appellee.
Before R. Monroe Fields, Judge.
Affirming.
Appeal from a judgment for $500 awarded appellee for personal injury. Appellant operated a small coal mine, employing seven or eight men. Luster began work on May 3, 1943, and was injured by a fall of slate on May 7, while loading coal. Appellant was not operating under our Compensation Act. The suit being at common law, appellant could not rely upon the defenses set out in 342.410, KRS, and in answer it merely denied the allegations of the petition.
Luster asked $2500 on account of his injury, which he alleged had caused and will continue to cause him to suffer physical and mental pain; that his injuries are permanent, and his power to earn money or to secure employment had been impaired, all due to the carelessness and negligence of appellant in failing to furnish him a safe place in which to work. Upon a trial the jury awarded him $500. On appeal it is only contended (a) that there was not sufficient evidence of negligence on appellant's part to take the case to the jury. (b) There was not sufficient evidence of permanent injury, or of impairment of earning power to authorize an instruction on or recovery for permanent injury. The argument on point (b) is that it must be sufficiently shown that earning power has been permanently impaired. Chesapeake & O.R. Co. v. McCullough, 230 Ky. 478, 19 S.W. 2d 1047, cases cited, and Consolidated Coach Corp. v. Phillips, 236 Ky. 823, 34 S.W. 2d 722.
Luster, 39 years of age, with very little mining experience, went to his work loading coal about 10:00 a.m. May 7. He said he was loading a car, and had a stump that was almost down, and he took a pick, knocked the coal down, and began to throw coal toward the car, and while doing this "the rock fell and caught me." He said that Billiter, who had charge of loading, had come into his working place and set up two timbers, "all he had in the place," and "I told him the top was working, and was dangerous," and he replied: He said Billiter left and came back and "I told him it was still working there." He asked Billiter to set some more timbers; He does not say that Billiter said he would bring in or use more timbers, but did assure him that is was as safe there as in the place they had been working. Luster had been working in mines only about three months, and said he relied on Billiter's assurance that the place where he was working was safe. He described the piece of slate as being about 14 feet long, 8 feet wide and 6 inches thick, and said it caught him on the right shoulder; knocked him down and pinned him.
On cross-examination Luster said that he and Ben Billiter had set up the two timbers that morning; that the room was timbered back behind them, indicating that he and Billiter had timbered as they went along. He thought the last timber had been set about 8 or 9 feet from the coal facing, and that other timbers might have been set in this 8 foot space closer to the facing, without cleaning out the coal. He said he had earned about $22 for this three days' work, and his average wage was around $50 per week.
Appellee's 16 year old son was helping that morning; he testified substantially as his father had, and was sure that when Billiter had laid track toward the coal face, he was told that the top was working; that Billiter told him and his father to go on loading, and he would go out and send some timbers in. He said that little pieces of rock had been falling during the morning; several pieces fell on him. Billiter never sent any more timbers, and the injury occurred about thirty minutes after Billiter left. He describes the piece of slate and said: "Some broke on the car and dropped on Daddy when it hit him." He removed some of the pieces, and he went through the break-through and got the pony driver and took Luster out of the mine, thence in an automobile to the doctor's office.
Ben Billiter, for defendant, testified that he had charge of operations; he had been in the room where Luster was working. He said he had hired Luster to run the bucket on the outside, and not as a coal loader, but that Henry Billiter, who had charge of shooting and loading coal, had taken him in to help in shooting and loading. He said that he had sent in a couple of timbers which were set up to 8 feet of the facing. He said that if he had set more timbers toward the face "you couldn't work through them." He testified that from his experience it was not necessary to set any timbers closer to the face of the coal, and was positive that he had not noticed the top working; that Luster had not told him that it was doing so; that he had not told Luster the place was safe, or to go ahead and clean up and he would send him some other place, but told him to watch and if he saw the top working to "get out of the way and come and tell me." Other witnesses testified that the room where Luster was working was being driven near the outside or out-cropping, and that under the circumstances the supporting timbers should have been set from 1 1/2 to 2 feet apart, and nearer the facing.
On the question of extent of injury and its effect, Luster testified that his right shoulder was dislocated; his right foot and right hand "mashed and strained, and had little cuts." He was taken to a doctor who X-Rayed and reduced the joint. He testified that he suffered much pain; could not rest at night, and testifying on March 30, 1944, said he still suffered at that time. Dr. Vernon testified that he treated Luster on May 7, 1943. He had a dislocated shoulder and injury to his hand and foot. The dislocation was reduced in good order; there was no fracture. Luster came back on the tenth complaining of pain in hand and foot. X-Rays were taken and showed no fracture. The doctor advised him to rest until he felt like returning to work. Asked if in his opinion Luster sustained permanent injury, he said he had not examined Luster since May 10, and could not state definitely that he had no permanent injury, but added, "I do not see why he should have any permanent injury."
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