Boyd v. Crescent Coal Co.

• Decision Date: 27 January 1911
• Parties: BOYD v. CRESCENT COAL CO. [1]
• Court: Kentucky Court of Appeals

133 S.W. 777

141 Ky. 787

BOYD v. CRESCENT COAL CO. ^[1]

Court of Appeals of Kentucky.

January 27, 1911

Appeal from Circuit Court, Muhlenberg County.

Action by L. W. Boyd against the Crescent Coal Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Willis & Meredith and Heavrin & Woodward, for appellant.

Newton Belcher and Belcher & Sparks, for appellee.

CLAY C.

Appellant L. W. Boyd, brought this action against appellee, Crescent Coal Company, to recover damages for personal injuries. The jury found for defendant, and plaintiff appeals.

The only error relied upon is the failure of the court properly to instruct the jury. Appellant charged in his petition that appellee's foreman commanded and directed him to remove certain falling slate. Appellant informed the foreman that he was afraid of the roof in the mines at that point. The foreman examined the roof, and after the examination directed appellant to proceed with the work, assuring him that the roof was perfectly safe and in no danger of falling. Appellant obeyed the orders of his superior, and while relying upon his assurance was injured by falling slate.

Appellant testified that he was 44 years of age and had been engaged in mining for a period of 7 years. At the time of the injury he was the timber foreman, and in charge of a gang of three men. It was his duty to clean up the falls, and to timber all places in the mines which were unsafe. The accident occurred on Tuesday. Appellant and his timber crew went to work at the place of the accident on the Friday preceding. When they went to work, they began cleaning up the fall and timbering as they went. They had worked there Friday and Saturday and a part of Monday. On Monday the mine boss came to the place where appellant and his crew were at work cleaning up and making the entry safe, and directed them to clean up the slate as rapidly as possible, so that Shemwell, a driver could get the trucks through. Appellant objected to this because he was afraid of the slate. The mine boss told him the slate was as sound as any in the mine, and that he would not be afraid to lie down under it and go to sleep. This conversation took place on the day before the accident. Appellant and his assistants had taken out about 80 cars of slate, and at the time of the accident were actually engaged in the work of timbering. Appellant admitted that after slate has fallen the roof is not safe; but he says he did not know it was as dangerous as it was. Appellant states that the very purpose of timbering up the mine was to secure himself and the men who were working under him. The roof did not fall while they were taking up the slate. They had laid down their shovels the day before at 4 o'clock. The accident occurred at about 11 o'clock the next morning. At the time of the accident appellant had not gotten up to the roof with the timber. He undertook to crib up as he went. The reason he began to timber was that he was afraid to go under the roof without timbering. The evidence of appellant is confirmed by that of other witnesses. At the conclusion of appellant's evidence, appellee asked for a peremptory instruction, which was refused.

Here then, we have a case where the party injured was the foreman whom the master had employed for the purpose of making the mine safe. It was his duty to go to the different places in the mine that were unsafe, remove the fall, and timber up, so that he, his...