Consolidation Coal Co. v. Hamilton

• Decision Date: 25 May 1916
• Citation: 186 S.W. 197,170 Ky. 393
• Parties: CONSOLIDATION COAL CO. v. HAMILTON.
• Court: Kentucky Court of Appeals

186 S.W. 197

170 Ky. 393

CONSOLIDATION COAL CO. v. HAMILTON.

Court of Appeals of Kentucky.

May 25, 1916

Appeal from Circuit Court, Johnson County.

Action by Dick Hamilton against the Consolidated Coal Company. Judgment for plaintiff, and defendant appeals. Reversed.

O'Rear & Williams, of Frankfort, and Fogg & Kirk and H. S. Howes all of Paintsville, for appellant.

Roscoe Vanover and Reynolds & Steele, all of Pikeville, for appellee.

MILLER C.J.

This appeal is from a verdict and judgment awarding the appellee $1,250 in damages for personal injuries received while operating a coal-cutting machine in appellant's mine at Van Lear, Ky.

The petition alleged that while the appellee was working in appellant's mine on January 9, 1914, appellant, through gross negligence and carelessness, furnished appellee with a coal-cutting machine which had a defective clutch, and that by reason of the defective clutch giving way, plaintiff's right leg was broken and his other leg very severely injured bruised, and mangled; that his injuries are permanent, and caused plaintiff much mental and physical pain and suffering and have permanently impaired his power to labor and earn money.

The petition further alleged that the clutch was known to the appellee to be defective before he was injured, but that he did not know of the dangers incident to using the machine with a defective clutch; that the appellant knew the clutch was defective and the dangers incident to using the machine with the defective clutch before the injuries were inflicted, and in time to have prevented injury to the plaintiff; that appellee continued to work with the defective machine under a promise of appellant to repair same; and that he was injured while continuing his work and awaiting said repairs, and without any knowledge of the dangers incident to using the defective machine. The answer contained a traverse of the allegations of the petition, and a plea of contributory negligence.

The proof showed that Hamilton was 30 years of age at the time he was injured, and that he had been a coal miner for 18 years, doing all kinds of work in the mine. He had had five or six years' experience in operating coal-cutting machines, and about two years' experience in operating the type of machine by which he was injured, which was known as a short wall Jeffrey machine. He had been working with this machine from November 23, 1913, until January 9, 1914, the date of the accident.

The day after he began working with it he notified appellant's electrician that the machine needed repairs; and occasionally thereafter during the six weeks he operated the machine he continued to notify the electrician that the machine needed repairs. The repairs were never made.

In operating the machine a forked jack was used for the purpose of getting the machine in place and started in cutting the coal. The jack was set on the right-hand side of the machine, near the face of the coal, and in a slanting position, between the roof and floor of the mine. The jack was attached to the machine by a rope placed around the jack near its lower end, so that when the machine began to cut, the rope would pull against the jack and tighten it. The jack had a screw in it for the purpose of lengthening or shortening it. The forked end of the jack usually rested against the roof of the mine and would fit into a small hole dug into the roof by the miner. It was customary to make this hole in the roof, insert the forked end of the jack into it and tighten the jack to make it secure. The trouble with the machine in question was that the shifting clutch was worn and would sometimes fly off and release the feed of the machine so that it would not cut the coal.

On the occasion in question when Hamilton was injured, no hole had been made in the roof for the forked end of the jack, and it had not been tightened by means of the screw provided for that purpose.

Hamilton's helper placed the jack in position and held it until the machine began to run, when he pulled on the rope, tightening it. The defective clutch flew off, the feed on the machine was released, with a consequent release of the tension of the rope on the jack. This caused the jack to become loose and fall, and in falling it caught in the moving bits of the machine and caused the machine to move around and catch appellee's leg between it and the coal, breaking one of the bones.

Appellant insists that its motion for a peremptory instruction should have been sustained. The argument for appellant is that Hamilton knew of the defective condition of the machine; and, although he asked appellant to repair it, he does not show that appellant's promise to repair the machine induced him to continue using it in its defective condition. In testifying, Hamilton admitted the machine was in bad order when he began working with it. He further said its shifting clutch was worn out and would not hold, but would fly off whenever the pressure against it was removed; that he complained repeatedly to the electrician and the mine boss about the condition of the clutch, and that the mine boss repeatedly promised to repair it, but had as often failed to do so because the company did not then have the necessary repairs in stock. Hamilton further said the mine boss promised to take up the matter of repairs with the superintendent; that they would have to get along the best they could until the company could get the parts necessary to repair the machine; and that this was substantially the same answer that was given to Hamilton every time he complained. There was no promise or assurance given to Hamilton that the repairs would be made by a specified time; neither does it appear that he was induced by the assurance or promise to continue in the work.

The appellee's rights under this state of facts were well stated by this court in American Tobacco Co. v. Adams, 137 Ky. 422, 125 S.W. 1070, as follows:

"As we understand the rules in reference to the protection of the servant when he continues in an employment after he has called the attention of the master to the fact that the premises or appliances are defective or unsafe, and has an assurance that they will be repaired, they may be summarized generally as follows: (1) If the place is intrinsically dangerous or if the appliances or implements to be used require skill or care in handling to prevent accident or injury, the servant may depend upon the assurance of the master to repair; but if the place is not intrinsically dangerous to work in or about, and the appliances or implements in use are simple in character and those used in ordinary employments and such as do not require any particular care or skill to operate or handle, the promise of the master to repair will not render him liable if he fails to do so. (2) The servant must have been induced by the assurance or promise to continue in the employment. (3) If the promise or assurance is that the repair will be made by a specified time, the servant may continue to work on the faith of it until the time specified; and, if no time is fixed when the repairs are to be made, then the servant has the right to assume that they will be made within a reasonable

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