Black Mountain Coal Corp. v. Vickers
| Decision Date | 11 May 1943 |
| Citation | 294 Ky. 259,171 S.W.2d 442 |
| Parties | BLACK MOUNTAIN COAL CORPORATION v. VICKERS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.
Proceeding under the Workmen's Compensation Act by Charles Vickers employee, opposed by Black Mountain Coal Corporation employer. From a judgment affirming an award of the Workmen's Compensation Board, the employer appeals.
Affirmed.
J. B Snyder, of Harlan, for appellant.
George R. Pope, of Harlan, for appellee.
MORRIS Commissioner.
In April, 1941, appellee filed claim with the Compensation Board for injuries received in appellant's mine by inhaling "bad air" due to inadequate ventilation. He asserted that he was rendered totally and permanently disabled. Referee Clay, after a long and tedious hearing found him to be totally permanently disabled by the alleged injury, and that he was entitled to allowance as fixed by K. R. S. 342.095. It was agreed that parties had accepted the terms of the act, and appellee's average weekly wage was sufficient to entitle him to maximum compensation, if his injury was compensable.
Upon appellant's motion the matter was passed to the full Board and it upheld the finding. The circuit court, on appeal, upheld the Board's conclusions. There is little question of procedure, it being insisted by appellant that the proof shows the claim to be ill-founded, and an afterthought; that it is not shown that Vickers breathed bad air, but if so his disability arose solely from pre-existing disease. That our rulings in "bad air" cases do not justify or sustain the award here made, citing American Rolling Mill Co. v. Pack, 278 Ky. 175, 128 S.W.2d 187; Fannin v. American Rolling Mill Co., 284 Ky. 188, 144 S.W.2d 228; Consolidation Coal Co. v. Marcum's Adm'r, 289 Ky. 220, 158 S.W.2d 150.
Vickers, a married man with several children, and about thirty-seven years of age at the time of the alleged injury, had been engaged in mining for appellant for about five years, and was admittedly a good miner. The record shows by lay witnesses that he was a strong able-bodied man prior to the injury, though it is shown that he had theretofore suffered from the flu, and had been "down" more than once from bad air. He underwent a favorable physical examination in 1936.
On February 11, 1941, he, Lee Frederick and Winston Cox were working on a night shift in mine 31, on what is known as a three-way system, in the heading of No. 2 main left. Cox was working at a heading on one side of the main left; Frederick on another, and on the right and left of the air course. Vickers was in the main left heading, and about 90 feet from the air course which ran from right to left, passing but not entering directly any one of the places where the three were working on the night shift from 4 until 11 p.m.
Vickers said that when they went about 20 feet in the entry it was smoky. They shot down some coal and laid some track. He then went into the heading, loaded one car, and tried loading another, but his head "went to hurting; felt sick at my stomach and vomited." He went to the break through to get air; went back and "we loaded--the last car I didn't get loaded good." He said he was too sick to do good work. He went to the break-through and laid down for an hour. He then went to where his "buddy" was loading in the air course, vomited again and laid down. One of his gang said, "they ain't no down air in here." The other two loaded until quitting time, and he and his buddies met in the air course in the main heading and made the man trip to the outside. Vickers, after taking a bath, started with his buddies to Disney, about three-fourths of a mile distant where they lived. He says there was smoke in the room where he was working; when the motor came in it would push the smoke back and it "died" in there. He described just how the air affected him. He said that though he had tried mine work at one time, and outside work once thereafter, he was unable to continue. The morning following, still feeling the effects of the air, he went to, or sent for, the company doctor.
Some of the doctors, and several laymen, testified that Vickers' mind was unsound, and while his testimony was given in a fairly intelligent manner he made many rambling and incoherent statements. Frederick testified that on February 11th the three were mining out a part of No. 2 left main heading, and according to plans were working on break-throughs to the right and left air course. At the time, however, it seems that Vickers was working ahead of the point where the break-through would pass through No. 2 left main in order to reach the right and left air course. He said that Vickers came to where he was, complaining with his head and stomach, "he was awful sick." He thought Vickers had been working about 80 feet ahead of the air current running from right to left, and he and Cox were further away from the air course; that at most of the time they got fresh air, but at times it made him "awful dizzy." When the trap door was open "we would not get any air, and I have seen them open a lots of times." This witness said that he had gotten dizzy several times, and once that night without serious effect. He said that he reported to superiors that the air was bad; this was before the night when Vickers got sick; that Feichter had told somebody not to work in the main heading until the break-through was completed. He expressed the belief that bad air was the cause of Vickers' sickness.
Cox testified to substantially the same effect, and that Vickers was all right when he went on the shift, but came out of his place once complaining about the air, and later they all left on the man trip, and went home. Vickers complained of his head and stomach, and walked "very slow." Cox did not feel any effect of bad air that night, but had before that time. He also said that the day after Vickers got sick Feichter, the foreman, put a log across a main left heading above the cross breakthrough as a warning for men not to work in that direction until the break-through was completed.
The timber and brattice man in the section where Vickers was working, explained how air circulated through the air course. He said that if any of the trap doors on the course on either side were left open it would short circuit the air. He had seen the trap doors open at one time, but did not know their condition at this particular time. He had complaints about the air, but none on that particular day; that if Vickers was working 90 feet away from the air course he was working there without authority of the foreman. Other testimony went toward showing that Vickers was in good health and a good miner before the alleged injury; as to his condition thereafter, and experiences of other miners with bad air and its effects. Several miners testified that they believed bad air was the cause of his disability.
Dr Giannini, chief physician and surgeon of appellant, was on vacation at the time Vickers became ill, and Dr. Carr was acting in his stead. He called upon Vickers at home shortly after the 11th of February and found him ill; he had fever, complaining of severe headache, vomiting and some reddening of...
To continue reading
Request your trial