Black Star Coal Company v. Garland

• Decision Date: 15 March 1929
• Citation: 228 Ky. 473
• Parties: Black Star Coal Company v. Garland.
• Court: United States State Supreme Court — District of Kentucky

228 Ky. 473

Black Star Coal Company v. Garland.

Court of Appeals of Kentucky.

Decided March 15, 1929.

1. Negligence. — To justify a peremptory instruction in an action for negligence, it must appear that, admitting plaintiff's testimony and every inference therefrom, he has failed to support his cause of action.

2. Landlord and Tenant. — In action for injuries to tenant due to defective steps over wire fence inclosing houses in which plaintiff and other miners lived on defendant coal mine operator's premises, whether steps were defective, and condition had existed for sufficient time for discovery thereof and repair, held for jury.

3. Landlord and Tenant. — In action for injuries to tenant from defective stairs, instruction held erroneous in that it authorized jury to find landlord negligent if the defect had been caused or had been created immediately before the accident and before landlord and an opportunity to discover it.

4. Trial. — In action for injuries to tenant sustained on defective stair, instruction held erroneous in assuming defective condition, which under the evidence was a question for the jury.

5. Landlord and Tenant. — In action for injuries to tenant from defective stairs, in which there was evidence tending to show that the tenant was intoxicated at the time of the accident, instruction that, "Ordinary care is that degree of care which an ordinarily prudent person would exercise under like or similar circumstances, as shown in this case. The failure to exercise ordinary care is negligence" — held erroneous.

Appeal from Harlan Circuit Court.

LEE & SNYDER for appellant.

G.G. RAWLINGS for appellee.

OPINION OF THE COURT BY JUDGE REES.

Reversing.

The appellee, Jesse Garland, who was the plaintiff below, brought this action against the Black Star Coal Company for damages for injuries alleged to have been received by him on the night of November 27, 1925, when he fell on what he claims were defective steps over a wire fence on the premises of appellant at its mine in Harlan county, Ky., and received a broken leg. He recovered a judgment for $1,000, from which the coal company has appealed.

As grounds for reversal it is urged that the court erred in overruling appellant's motion for a directed verdict and in giving instructions.

Garland was an employe of the coal company and occupied as a tenant a portion of one of the houses owned by it. The company owned a number of houses which were rented to its employes, and these houses were surrounded by a barbed-wire fence. The only means of ingress and egress were gates, which were usually kept locked, and steps over the fence. One set of steps was used by the employes in going to and from the mine. Another set of steps was constructed over the fence on the opposite side of the inclosure. It was on these last-mentioned steps that appellee was injured. His evidence tends to show that shortly after dark on November 27, 1925, he and Sam Jones left the inclosure by way of the steps for the purpose of procuring kindling, and that when they returned he stepped on a defective step, was thrown, and broke his leg. It seems there are six steps leading to a platform 3 feet in width over the fence. Each step is 3 1/2 feet in length and is composed of seven strips of wood each one inch wide with a vacant space between the strips. The space between the steps is open. The outside strip on the alleged defective step was missing, leaving the tread of the step 7 inches in width instead of 9 inches. Appellee's foot slipped on the defective step, and his leg passed through the opening between that and the next lower step, throwing him head-first down the steps and breaking his leg. Sam Jones and Dave Spivey had passed over the steps immediately in front of appellee, and, hearing him fall, they returned and found him hanging with his head down; his leg being caught in the open space between the steps. They took him to his home and later to a physician's office, where his leg was set. The accident occurred between 7 and 8 o'clock in the evening, and he arrived at the physician's office about 11 o'clock. When he arrived there he was intoxicated, but he claims that he had drunk no liquor on that day before the accident, but did take several drinks after the accident and before he went to the physician's office. The steps upon which appellee was injured were used by appellant's employes in going to and from their homes and were constructed and maintained by appellant for that purpose. Spivey testified that he had observed the defective step and that one of the strips was missing about three or four weeks before the accident...