Columbus Mining Co. v. Napier's Adm'r

• Decision Date: 16 June 1931
• Citation: 40 S.W.2d 285,239 Ky. 642
• Parties: COLUMBUS MIN. CO. v. NAPIER'S ADM'R.
• Court: Kentucky Court of Appeals

40 S.W.2d 285

239 Ky. 642

COLUMBUS MIN. CO. v. NAPIER'S ADM'R.

Court of Appeals of Kentucky

June 16, 1931

Appeal from Circuit Court, Perry County.

Action by Otis Napier's administrator against the Columbus Mining Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded with directions.

Craft &amp Stanfill, of Hazard, for appellant.

Napier & Eblen, of Hazard, for appellee.

CLAY J.

On July 13, 1929, Otis Napier was found dead in a driftmouth about 60 feet from the opening on the premises of the Columbus Mining Company. Thereafter this action was brought by his administrator to recover damages for his death. Liability was predicated on the theory that the driftmouth was dangerous because of the presence of noxious gases; that it was attractive and alluring to children, who were accustomed to play there with the knowledge of the mining company; that the decedent, though fifteen years of age, did not have mind enough to appreciate the danger; that he was playing in the driftmouth at the time of his death; and that his death was caused by noxious gases. Issue was joined, and the jury returned a verdict in favor of plaintiff for $10,000. The mining company appeals.

The facts are these: Though located on appellant's premises the driftmouth is near the city limits of Hazard, and about 3,000 feet from where appellant conducts its active mining operations. The driftmouth is about 6 feet wide and 4 or 4 1/2 feet high. It is located about 30 yards above a road and small branch. Bushes have grown up around it, and the surrounding ground is very steep. The driftmouth was open, and there was no warning sign about it. Besides detailing the facts connected with the finding of decedent's body, William Napier, his father testified that decedent and other children were in the habit of congregating and playing in the driftmouth; that he admonished decedent to stay away from the mine because it was dangerous; that decedent was fifteen years of age, and a big healthy, robust child; that he had been in school ever since he was six years old, and had attended regularly; that he was in the fifth grade and played with boys from eight to twelve years of age; that he would also play with toy wagons, build little dams, and shoot at little boys with bows and arrows; that he told Sam Allais, superintendent of the Columbus Mining Company, that children were playing in and about the driftmouth; that Allais said he would not allow anybody to get coal up there and he was coming to check up on the coal; that this conversation happened about three or four months before decedent died; that after that the mining company did not do anything toward stopping up the driftmouth. M. C. Napier, county superintendent of schools, testified that, if a child entered school at the age of six, and attended regularly, and was a normal child, it was supposed to make a grade a year, and would be eleven years old by the time it entered the fifth grade. John E. Napier, the grandfather of the decedent, testified that he had seen decedent and other children playing in the driftmouth for three or four months before decedent's death. Decedent played with Mr. Young's boys, one of whom was ten, the other eight. He further stated that about three or four months before decedent died he told Mr. Ed Allais, the manager of the Columbus Mining Company, that children were going in that mine; that it was dangerous and he had better close it up. He also stated that decedent was in the habit of playing with younger boys. Frank Young, a boy eleven years of age, who was in grade Third-A, testified that, during the summer before Otis Napier died, he played hide and seek with Otis in the mine because it was dark and cool, and you could hide in there better. His father quarreled with him for playing in there, and whipped him. They would play in the mine every Saturday and Sunday. Billie Baker testified that about the year 1917 or 1918 he had possession of the...