Borderland Coal Co. v. Kirk

• Decision Date: 24 May 1918
• Citation: 180 Ky. 691,203 S.W. 534
• Parties: BORDERLAND COAL CO. v. KIRK.
• Court: Kentucky Court of Appeals

203 S.W. 534

180 Ky. 691

BORDERLAND COAL CO. v. KIRK.

Court of Appeals of Kentucky.

May 24, 1918

Appeal from Circuit Court, Pike County.

Action by C. F. Kirk, as administrator of Wendell Holmes, deceased against the Borderland Coal Company. Judgment for plaintiff and defendant appeals. Affirmed.

J. J Moore, of Pikeville, James P. Woods, of Roanoke, Va., and Samuel D. Stokes, of Williamson, W. Va., for appellant.

A. J Kirk, of Paintsville, and Cline & Steele, of Pikeville, for appellee.

CLAY C.

C. F. Kirk, as administrator of Wendell Holmes, deceased, brought this suit against the Borderland Coal Company, to recover damages for his death. From a verdict and judgment in his favor for $3,000, the coal company appeals.

At the time of his death decedent was 26 years of age, and he and Peter Lewis were engaged in drawing pillars for the coal company. He and Lewis were "buddies," and were at work on the same pillar. At that time the company had a regular timberman by the name of John Lock, whose duty it was to prop and secure the roof where decedent and Lewis were working. On the morning of the day of the accident, Lewis requested the assistant mine foreman to send the timber man to prop the place where he and decedent were at work. Lock, the timber man, came about 11 o'clock and asked if any timbers were needed. At that time Lewis and decedent were eating their dinner. Lewis then went with Lock and showed him where to set three timbers. One of the designated places was under that portion of the roof from which the slate afterwards fell. Lewis then returned to the entry, and he and decedent continued to eat their dinner. After Lock finished his work he said, "All right; so long," meaning that everything was all right. About an hour and a half or two hours later, Lewis and decedent returned to work. Cars were then placed, and Lewis and decedent, who were about 15 feet apart, began to load. Instead of setting three timbers, Lock had set only one. The work in which they were engaged was dangerous, and slate was liable to fall unless the roof was properly propped. When they returned to the work, Holmes took a pick and sounded the roof, and said that it was all right. A few minutes later the slate fell and killed decedent. The slate would not have fallen if a timber had been set at that place.

The company introduced a book of rules which, its manager testified, had been approved by the state mine inspector and printed and properly posted throughout the mine. One of these rules provided that each miner should take down the dangerous slate and do his own propping and timbering. It further provided that props, caps, and other timbers could be procured by placing an order therefor with the mine foreman or his assistant at least 24 hours in advance of the time they were needed, and giving the number, sizes, and lengths required. The same rule called attention to and quoted the following provision in subsection 5 of section 2726, Kentucky Statutes:

"Every workman in need of props, cap pieces and timbers shall notify the mine foreman, or an assistant mine foreman, or any other person delegated by the mine foreman, of the fact at least one day in advance, giving the number, size, and length of props, cap pieces and timbers required. In case of emergency, the timber may be ordered immediately upon discovery of danger. If for any reason the necessary timbers cannot be supplied when required, the workman shall vacate the place until the timber needed is supplied."

The company's manager was subsequently recalled by plaintiff, and testified that Lock was employed as a timber man and that it was his duty to set timbers wherever he thought they were necessary to be set to preserve the lives of the men and the property of the company. He further testified that it was Lock's duty, when directed by the assistant mine foreman, to set posts at pillar work such as decedent was employed in, and this had been the custom of the mine ever since it began operations.

It is first insisted that both the statute and the company's rules imposed on the decedent the duty of requesting props at least one day in advance, and of doing his own propping, and that the statutory duty could not be changed by custom. Hence it is argued that the company's demurrer to the petition and its motion for a peremptory should have been sustained because there was neither pleading nor proof that the decedent complied with the statute. We have ruled that where the duty of propping devolves upon the miner, he must request props in the manner pointed out by the statute, and that the statutory requirement could not be changed by custom of the mine so as to impose upon the mine owner a liability for failure to furnish props, when the statute itself was not complied with. Palmer's Adm'r v. Empire Coal Co., 162 Ky. 130, 172 S.W. 97; Stearns Coal & Lumber Co. v. Crabtree's Adm'r, 168 Ky. 8, 181 S.W 615; Sneed & McGuire v. Legere, 168 Ky. 3, 181 S.W. 617. In construing the former statute we also held that the statute did not in terms impose either upon the mine owner or miner himself the duty of propping, and that whether the duty was imposed upon the one or the other could be shown by the agreement of the...