Central Quality Coal Co. v. Akers

• Decision Date: 19 June 1970
• Citation: 460 S.W.2d 349
• Parties: CENTRAL QUALITY COAL CO., Inc., Appellant, v. Shirlie Gail AKERS, Administratrix, etc., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 349

460 S.W.2d 349

CENTRAL QUALITY COAL CO., Inc., Appellant, v. Shirlie Gail AKERS, Administratrix, etc., Appellee.

Court of Appeals of Kentucky.

June 19, 1970.

Edward R. Hays, William J. Baird, Baird & Hays, Pikeville, for appellant.

F. Dale Burke, Joseph W. Justice, Burke & Justice, Pikeville, for appellee.

OSBORNE, Judge.

This is an action by the appellee, Shirlie Gail Akers, as administratrix of the estate of her deceased husband, Ralph Akers, to recover for his wrongful death. The jury returned a verdict for $45,000 upon which judgment was entered. Appellant, Central Quality Coal Company, here asks that that judgment be reversed assigning two principal reasons:

First, there was no showing of negligence upon its part; and, second, assuming that there was negligence the evidence shows conclusively that Ralph Akers was himself also negligent, therefore barring recovery. We are of the opinion the judgment should be reversed.

The facts which form the basis of the action are as follows:

The decedent was employed as a truck driver by Gary Johnson, who was an independent contractor paid by Central Quality Coal Company, to transport coal from Mine #7 on Little Robin's Creek to its preparation plant. Decedent met his death at the loading facility which was owned and maintained by Central. This facility consisted of a bin and chain conveyor. The coal was transported by the chain conveyor from the bin into the waiting trucks. A switch which activated the conveyor was located on an H frame supporting the conveyor. When a driver desired to load his truck, he would get out of the cab, throw the switch, thereby starting the conveyor and the truck would automatically be loaded. The bin out of which the conveyor transported the coal was made by excavating the earth into a hopper-type affair below the mouth of the mine. The coal was transported in trucks to the mouth of the mine and dumped into the earthen bin. As the conveyor would take the coal from the bottom of the bin, the coal would sink down directly over the mouth of the tube and feed into the conveyor by force of gravity. Occasionally, the coal would become jammed and the conveyor would hollow out a tunnel. The coal would stop feeding until the top was shaken. It would then start a slide into the conveyor. The drivers were all familiar with the operation and whenever it became stuck or did not properly feed onto the conveyor it was a practice of the drivers to go on the bin and shake or kick the coal in order to dislodge it.

Appellant met his death on March 13, 1968, around 9:45 p.m. when he and two other truck drivers met at the conveyor for the purpose of loading their trucks. Amos Bryant had his truck under the conveyor to be loaded. Akers and another truck driver, Kermit Roberts, were waiting to load their trucks. The coal jammed and did not come out of the conveyor. Akers and Roberts went up on the hopper to see why the coal was no longer feeding. According to Roberts' testimony, while they were on the pile, Akers disappeared. Roberts does not know whether he jumped or fell into the bin. When last seen he was going feet first into the coal bin where the coal fed into the tube. He went into the tube and was asphyxiated. Roberts and Bryant attempted to turn off the conveyer but before this could be accomplished Akers was beyond help. Several drivers testified that they and Akers had all gone on the pile many times before. They realized the danger yet proceeded to kick or punch the coal to get it unstopped so that they could load their trucks and get away. It was the opinion of the drivers that it was necessary to follow this procedure since most of them were paid by the load (it does not appear whether Akers was paid by the load or the day) and their salaries would be diminished by waiting for the...