Carter Coal Co. v. Hill

• Decision Date: 14 October 1915
• Citation: 179 S.W. 2,166 Ky. 213
• Parties: CARTER COAL CO. v. HILL.
• Court: Kentucky Court of Appeals

179 S.W. 2

166 Ky. 213

CARTER COAL CO. v. HILL.

Court of Appeals of Kentucky.

October 14, 1915

Appeal from Circuit Court, Knox County.

Action by W. H. Hill against the Carter Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. D Black and Black, Black & Owens, all of Barbourville, for appellant.

Brown &amp Nuckols, of Frankfort, and Golden & Lay, of Barbourville, for appellee.

CLAY C.

This is a personal injury case in which plaintiff, W. H. Hill recovered of defendant, Carter Coal Company, a verdict and judgment for $15,000. The coal company appeals.

The facts are as follows: The company employed certain men to undercut coal by means of electrical cutting machines. After the coal is undercut it is the duty of other employés, called "loaders," to shoot or dig down the coal and load it into the cars. This character of work was let out by contract at so much per ton. One G. P. Brooks had the contract at the place where plaintiff was injured. In carrying out his contract Brooks was assisted by plaintiff, Will Gaylor, and W. F. Detherage. Plaintiff had had about 15 years' experience as a miner. Prior to the accident he had been working as a loader in another part of the mine. On the morning of the accident he was directed by Brooks to go to work in a room neck. This neck had not been carried a sufficient distance to be called a room. It was only 9 or 10 feet wide, and the work of mining had progressed only for a distance of about 20 feet. Soon after plaintiff went to work he was struck by a large piece of overhanging slate and severely injured. The roof of the neck at this point could have been protected by cross-timbers of jack posts, and it was the duty of the company to do this work. Brooks says that it was his duty to do all straight timbering; that is, set the jack posts. Pete Broyles, the timber man, who was also sued, says that it was his duty to do the cross-timbering, but not set the jack posts. Other witnesses say it was not part of plaintiff's duty either to cross-timber, set the jack posts, or take down the draw slate. Plaintiff also states that just before going into the room neck he was assured by Pete Broyles, the timber man, that the top of the room was sound. Plaintiff also claims that it was his custom to sound the roof when he went to work; that he did so on the occasion in question, and the roof appeared to be solid. Plaintiff admits, however, if he found the slate loose it was then his duty to report it to some one. For the defendant, the mine foreman, York, after stating it was his duty to look after the working places and see that they were safe, testified as follows:

"Q. Tell the jury whose duty it was to take down the draw slate. A. It was the contractor, the men employed loading the coal to take it out; or, if it come in large falls, we would send a man to help timber it up and pay them for taking it up."

Broyles, the timber man, testified that it was not his duty to look after the loose slate at the face of the coal in the men's working places. It was his duty to cross-timber, but this could not be done within 12 feet of the face of the coal. He further testified that the place where plaintiff was at work was too close to the face of the coal to permit of cross-timbering, and it was no part of his duty to set the jack posts, although he admits that he started to get a jack post for the purpose of setting it up just shortly before the accident occurred. He further claims that just prior to the accident he warned plaintiff of the dangerous condition of the roof. Gaylor, who was working with plaintiff, and who had formerly been a contractor and assigned his contract to Brooks, said that, under his contract, the company was to do all cross-timbering, but he was to set the jack posts. Detherage, who was also working with plaintiff, testified that it was the duty of the man doing the contract to take down the loose slate; that the man engaged in loading coal is always supposed to take care of the loose slate. He further said it was the duty of the man who loaded the coal to set the jack posts. Brooks, the contractor, testified that it was not the duty of the company to timber at the place where the slate fell. It was his duty, under his contract, to have the draw slate taken down and to set the jack posts in the working places.

The accident out of which this action arose occurred in the year 1913, and therefore prior to the amendments of 1914 to the mines and mining statute. Under the statute then in force, it was the duty of the mine owner, after the miners had selected and marked them, to furnish to the miners a sufficient number of caps and props to be used by the miners in securing the roof in their rooms, and at such other working places where by law or custom of those usually engaged in such employment it was the duty of the miners to keep the roof propped. Section 2739b, subsec. 7, Kentucky Statutes 1909. Manifestly this statute is not applicable where, by custom or rule of the mine, the duty of propping or timbering does not devolve upon the miner himself. Defendant insists that the trial court erred in assuming in the instructions that it was the duty of the defendant to prop the roof, and therefore use ordinary care to make plaintiff's working place reasonably safe. Plaintiff's evidence shows that under the custom of the mine no duty of propping devolved upon him. Defendant insists that the evidence of York, Broyles, Gaylor, Detherage, and Brooks, above set forth, shows that it was the duty of the plaintiff and those working with him to do the propping. We have carefully considered the evidence referred to, and fail to find any ground for this contention. Brooks says it was his duty, under his contract, to set the jack posts, and a careful reading of the statements of York, Detherage, Gaylor, and Broyles shows that the word "loaders" was used with respect to the contractor, and not with respect to the men employed by him to do the work. On the whole, we think the evidence shows that it was the duty of the company to do the propping, but that under the contract between...