Bon Jellico Coal Co. v. Murphy

• Decision Date: 08 December 1914
• Citation: 161 Ky. 450,171 S.W. 160
• Parties: BON JELLICO COAL CO. v. MURPHY.
• Court: Kentucky Court of Appeals

171 S.W. 160

161 Ky. 450

BON JELLICO COAL CO. v. MURPHY.

Court of Appeals of Kentucky.

December 8, 1914

Appeal from Circuit Court, Whitley County.

Action by Henry Murphy against the Bon Jellico Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Tye Siler & Gatliff, of Williamsburg, for appellant.

Henry C. Gillis, J. B. Snyder, and B. B. Snyder, all of Williamsburg, for appellee.

NUNN J.

Appellee was injured by a fall of slate while working in appellant's mine. The third finger of his right hand was cut off, and the second and little fingers were so bruised and lacerated as to leave them permanently stiffened. He sued and recovered a $750 judgment.

In one of the mine entries, there was a sag in the floor. In order to fill up this sag and raise the track to grade, appellant contracted with Kilby and Estes, experienced miners, to make the entry three feet wider and shoot down two or three feet of the roof for a distance of about 180 feet, and with this brokendown roof it was planned to raise and level the track to correspond with the normal grade of the entry. Kilby and Estes received pay per ton of coal and yardage for driving the entry. At the time of the accident to Murphy, the slate had been shot down overhead of the original entry, and they had been paid for removing that slate. They were taking coal out from under the three feet of extra width. They had no contract for taking down slate from that part of the work except that, in taking out the coal, it was their duty to either prop or take down the loose slate. If the price could be agreed upon, they expected to make a contract, after taking out the coal, to take down the slate from over it, in order to make that roof conform to the new roof in the original entry. Coal had been taken out from under this 3-foot strip for a distance of about 80 feet, and 3 props had been placed at one end. There is no proof of any other props or support along the whole distance of the new entry or along the 3-foot strip.

Kilby and Estes had employed Murphy as a loader, and he was getting $2 per day. They turned Murphy's name in to the company and it was carrying him on its books, paying him his wages, less supplies furnished him at the store; but the amount paid to Murphy was deducted from the earnings of Kilby and Estes.

The accident occurred about 7 o'clock Monday morning, soon after work commenced. Murphy had loaded one car of coal and nearly completed another. He was loading this from coal which had been shot late Saturday evening, and Kilby was then picking it down. Murphy was standing on the car track in the mine entry. A large piece of slate, weighing, as some of the witnesses say, from 5 to 7 tons, and from 20 to 30 feet long, fell from over the place where Kilby and Estes had taken and were taking the coal out of the 3-foot strip. The bulk of this slate rolled out toward the track, but the break extended overhead into the entry, and one piece, weighing about 40 pounds, fell from immediately over where Murphy was standing. It is not made clear whether that was the piece of slate which struck him.

It is not contended that the danger was such an obvious or patent one as to put a man of ordinary prudence on his guard, nor does appellant insist that Murphy owed any duty to inspect the roof or take any steps to properly secure it. He was merely employed to load coal. In actually digging and mining, he never had altogether more than two days' experience. But appellant says that Murphy was not its servant; that he was in the service of Kilby and Estes, who were independent contractors; that it was the duty of Kilby and Estes to prop this slate and take it down, and their failure to do so was their negligence, and not the company's, and, if Murphy is entitled to anything by way of compensation for their negligence, he must look to them, and not to the company.

We are of the opinion that Murphy was appellant's servant, although engaged by Kilby and Estes. Under the facts proven, appellant owed him the duty of exercising ordinary care to give him a reasonably safe place to work, and appellant is not relieved of this duty by delegating it to others. The negligence of Kilby and Estes is virtually admitted, and their negligence is negligence of the company, for which it should respond in damages.

The case of Interstate Coal Co. v. Trivett, 155 Ky. 795, 160 S.W. 731, is in point. The facts are almost identical, and we quote:

"The first question made on the appeal is that Charles M. Trivett was not in the service of the coal company, but was working for one Hill, who was an independent contractor. The facts on this subject are briefly these: Charles M. Trivett applied to the mine boss for work. The

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