Black Mountain Corp. v. Partin's Adm'r

• Decision Date: 13 May 1932
• Citation: 243 Ky. 791,49 S.W.2d 1014
• Parties: BLACK MOUNTAIN CORPORATION v. PARTIN'S ADM'R.
• Court: Kentucky Court of Appeals

49 S.W.2d 1014

243 Ky. 791

BLACK MOUNTAIN CORPORATION v. PARTIN'S ADM'R.

Court of Appeals of Kentucky

May 13, 1932

Appeal from Circuit Court, Harlan County.

Action by the administrator of the estate of S. T. Partin, deceased against the Black Mountain Corporation. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

See also, 237 Ky. 556, 36 S.W.2d 1.

B. M Lee, of Harlan, for appellant.

G. G. Rawlings, of Harlan, for appellee.

THOMAS J.

At about 9 p. m. on July 26, 1928, the plaintiff's decedent, S. T. Partin, received fatal injuries in No. 9 entry of mine 31 belonging to and operated by the defendant and appellant, Black Mountain Corporation, in Harlan county, Ky. The accident occurred at a point about 200 feet from the mouth of the entry, and not far from the point where a diverging mine car track ran from the main line, but the switch was turned so as to cause cars coming from the mouth or entry of the mine to take the switch track and not to follow the main one. Decedent and one Patrick, his companion during that day, had, just prior thereto, gone into the mine and were talking to a Mr. Howard, whom the witnesses throughout this record refer to as "the contractor." For awhile, just preceding the accident, Walter Smith, who was the face boss of that particular mine, and also a motorman, was engaged in carrying empty cars into the mine and pulling loaded ones out of it. About sixteen loaded cars had been assembled and Smith started out with them, but before doing so he testified that the deceased and Patrick were not only informed of his purpose to take out the assembled train of that number of cars, but that they also saw him when he left them to perform that task, and that he and Howard then stationed the deceased and his companion, Patrick, by the side of the main track at a safe place beyond the switch, and instructed them to remain there until the train of cars was taken out of the mine by Smith.

Somewhere about the time the motor to that train was approaching the mouth of the mine a coupling link, connecting the sixth and seventh cars from the motor, broke, and, there being a slight down grade toward the switch near the point where decedent and his companion were left, the disconnected cars by their own momentum rolled down that grade, and, as they approached, decedent left the place assigned to him (and which all the proof shows was a safe one) and jumped across the switch track, which was open to receive cars approaching from the mouth of the entry. The space between the face of the entry, along which that switch track ran at that point, and the outer edge of cars on the track, was only a few inches wide, and so narrow as to not safely admit a human body between them. The backing cars ran out onto the switch track (the switch being opened for that purpose) and caught the body of decedent between them and the face of the entry, and so crushed him as that he died soon thereafter.

After unsuccessful efforts before the Compensation Board, plaintiff was appointed administrator of the estate of decedent, and brought this action against defendant to recover damages for his death because of alleged negligence on its part in failing to exercise ordinary care for his safety as an alleged invitee into its mine, and which negligence, as averred, consisted in defective equipment of cars, and mismanagement thereof, whereby the train became uncoupled and the rear cars allowed to roll back and injure decedent as indicated.

The answer denied the material averments of the petition, and alleged that decedent was a trespasser in defendant's mine, and that it owed him no duty while there, except to exercise ordinary care to prevent injuring him after his danger was discovered, and also to not willfully or intentionally injure him. There was also another paragraph in the answer, when first filed, pleading the unsuccessful proceedings before the Compensation Board in bar of the action, and the reply alleged in avoidance of that plea that the proceedings before the Compensation Board were void because it had no jurisdiction under the facts, as set out, to make any sort of finding in that case. The court sustained a demurrer to that part of the reply and dismissed the petition, from which an appeal was prosecuted to this court, and the judgment was reversed in the case of Partin's Adm'r v. Black Mountain Corporation, 237 Ky. 556, 36 S.W.2d 1. That opinion sustained plaintiff's contention of the absence of jurisdiction of the Compensation Board, and, of course, upheld the averments in the reply to that effect, and reversed the judgment because the trial court had held to the contrary.

It will therefore be seen that the opinion on that appeal dealt only with pleadings; there being no testimony then before this or the trial court. Upon a return of the case a trial was had resulting in a verdict against defendant for the sum of $5,000 upon which judgment was rendered in favor of plaintiff, and defendant's motion for a new trial having been overruled, it prosecutes this appeal, relying upon a number of alleged errors; but we have concluded that it is necessary to refer to or determine only two of them, and which are: (1) That, if the case was a submittable one at all, the court erred in failing to give instructions offered by defendant, and erred in the instructions that it did give on the motion of plaintiff over defendant's objection; and (2) error of the court in overruling defendant's motion for a peremptory instruction.

Patrick testified that he and decedent, up to within a few days prior to the accident, had been working in mine No. 30, belonging to defendant, located in the same territory as mine No. 31, and over both of which one Childers was the general superintendent, the two being separated by about one mile, but located in the same field of defendant's mining operations. When they quit the service of the company at mine No. 30, they were paid off and checked out. Witness says that on the morning of the fatal day he and the deceased went to mine 31 with the view of trying to procure employment as laborers in that mine; but they never mentioned the subject to any one in charge, or apparently in charge, until about 8:30 p. m. that evening, when witness says that they met the face boss foreman and motorman, Walter Smith, who told them that the contractor, Howard, was the one who did the employing for that mine and that he was down in the mine at that time. He also testified that Smith went into the mine with them to find Howard, and they found him in No. 9 entry about 200 feet from the mouth of the mine, and that Howard, with the consent of Smith, then and there agreed to give the two employment beginning the next or some future day, and that while they were talking Smith left and soon thereafter started to pull the train of cars that had been assembled in the meantime out of the mine, with the described result, supra.

On the contrary, Smith and, perhaps, another witness, contradicted Patrick as to how he and the deceased got into the mine. Those witnesses stated that Patrick and the deceased were informed that no persons were allowed in the mine, except employees, and that a contract of employment was forbidden to be entered into at night; that Smith told them that he was preparing to make a trip into the mine with a motor for the purpose of bringing out some loaded cars, and that he would speak to Howard and report to Patrick and decedent upon his return, and for them to meet him at the mouth of the mine that Smith then went to the place on the outside of the mine where the motor was kept for the purpose of carrying it into the mine, and that during his absence the two went into the mine, without his permission or consent, and contrary to the instructions he had previously given them. Perhaps, if the facts were as testified to by Patrick, he and decedent might be classified as invitees while in the mine, and entitled to whatever degree of care the law affords for one...