Central Coal & Iron Co. v. Grider's Adm'r

• Decision Date: 03 June 1903
• Citation: 74 S.W. 1058,115 Ky. 745
• Parties: CENTRAL COAL & IRON CO. v. GRIDER'S ADM'R.
• Court: Kentucky Court of Appeals

74 S.W. 1058

115 Ky. 745

CENTRAL COAL & IRON CO. v. GRIDER'S ADM'R.

Court of Appeals of Kentucky.

June 3, 1903

Appeal from Circuit Court, Muhlenberg County.

"To be officially reported."

Action by Daniel Grider's administrator against the Central Coal & Iron Company. From a judgment for plaintiff, defendant appeals. Reversed.

R. Y Thomas and H. P. Taylor, for appellant.

W. L Reeves, W. J. Ross, and Q. B. Coleman, for appellee.

PAYNTER J.

The appellant, a corporation, is a coal operator. It, desiring to have sunk on its property a circular shaft, eight feet in diameter, entered into a contract with Foley & Nunan, evidenced by a writing, by which they, at a stipulated price per foot, agreed to sink it. There are provisions of the contract which read as follows: "The party of the second part agrees to sink a shaft at a point designated by the party of the first part, the said shaft to be 8 feet in diameter and circular, for the sum of seven dollars and eighty-seven and one-half cents per foot in depth, reckoned from a point on a level with the bottom of the retaining wall, which will be built by a separate contract. It is further agreed that the party of the first part shall furnish the necessary tools with electric blast battery for doing this work and also a whim or hoist to be worked by horse power, also two horses for said whim. All labor and ammunition necessary for the completion of the work to be furnished by the parties of the second part. ***" Pursuant to the contract, the appellant furnished "a whim or hoist," and, as a part of it, a rope was necessary to be used for the purpose of suspending a tub used in the removal of the material from the shaft, and for the use of the workingmen going to and from their work in it. First a grass rope was used, but it was believed to be unsafe, when the appellant, at the request of Foley & Nunan furnished them a new wire rope--one that had never been used before. It was delivered to them on the -- day of November, 1901, and they continued to use it from that date until the 22d day of May, 1902, when Allen Bailey, one of Foley & Nunan's employés, got into the tub for the purpose of going to the bottom of the shaft in the prosecution of his labors; and, as the tub swung clear, the rope broke about 6 feet above the bail of the tub. It fell, with Bailey in it, to the bottom of the shaft, which was about 170 feet deep, striking the intestate, Daniel Grider, who was working at the bottom of the shaft; killing him, probably, instantly, as he was dead when rescued from the shaft a few minutes later. The accident occurred while Foley & Nunan, were sinking the shaft under their contract with the appellant. The personal representative of the intestate, Daniel Grider, brought this action to recover damages for the alleged negligence of the appellant in furnishing an insufficient, dangerous, and defective rope to be used for the purpose hereinbefore stated.

The appellee claims that, as it was the duty of appellant to furnish a rope to be used for the purpose and in the manner in which the one in question was being used when the accident occurred, the law imposed the duty of furnishing one in a reasonably safe condition, and to so keep it during the progress of the work. For the appellant it is contended that Foley & Nunan were independent contractors; that, in addition to paying them a stipulated price per foot for the work, it agreed to furnish tools, whim, etc., which it did to their satisfaction; that the intestate was their, not its, employé; and that the relation of master and servant did not exist between it and the intestate.

The evidence, without contradiction, establishes the facts to be as follows: That the wire rope was new, and, when furnished the contractors, that the estimated weight it would carry was many times greater than it was sustaining when the accident happened; that when the rope was furnished there were no apparent defects in it; that the contractors employed and paid their laborers; that their laborers were not on the pay roll of the appellant; that it did not direct or control them in the performance of their duties; that a party representing the appellant occasionally visited the shaft to note the progress of the work and make estimates, as required by the contract, to enable it to make payments to the contractors on the work. The rope could not have been defective when delivered to the contractors, or it would not have stood the use for six months before it broke. Copperas water, in contact with which it constantly came, caused it to rust and become defective. No jury composed of reasonable men could, from the evidence, or by reasonable inference drawn therefrom, have reached conclusions other than the ones last above stated.

Counsel invites the attention of the court to a great variety of cases which he contends support the right of the appellee to recover in this case; claiming that some place the right upon one ground, and some upon others. Attention has been called to the case of Bright, Adm'r, v. Barnett & Record Co. (Wis.) 60 N.W. 418, 26 L. R. A. 524. In that case it appeared that the defendant was engaged in building an elevator for grain, and contracted with a fire extinguishing company to construct a fire extinguishing apparatus and appliances. The defendant was to furnish the staging that the men employed by the fire extinguishing company would need in performing the work. A staging plank or a plank walk of a single plank was needed, to be thrown across the bins about 70 feet from the bottom, or above the floor on which the...