Duvin Coal Company v. Fike
| Decision Date | 19 May 1931 |
| Citation | 238 Ky. 376 |
| Parties | Duvin Coal Company v. Fike. |
| Court | United States State Supreme Court — District of Kentucky |
1. Master and Servant. — Liability of master for injury to servant depends upon proof of negligence as proximate cause, notwithstanding master elected not to operate under Workmen's Compensation Law (Ky. Stats., sec. 4880 et seq.).
2. Master and Servant. — That master elected not to operate under Workmen's Compensation Law does not affect burden resting upon servant to prove master's negligence was proximate cause of injury (Ky. Stats., sec. 4880 et seq.).
3. Master and Servant. — Master must exercise ordinary care to provide servant with reasonable safe place to work.
4. Master and Servant. — Master's duty to exercise ordinary care to provide servant reasonably safe place to work cannot be delegated so as to excuse nonperformance.
5. Master and Servant. — Duty of coal mining company to furnish servant safe place to work depends on circumstances prevailing at time of accident.
6. Master and Servant. — Master need not furnish servant reasonably safe place to work, where dangerous condition is created by servant in necessary progress of work.
7. Master and Servant. — Master is under duty to see that premises are reasonably safe when servant assumes charge, though not thereafter under such duty.
8. Master and Servant. — Rules or customs of coal mine are not conclusive in determining whether master was required to furnish servant safe place to work.
9. Master and Servant. — In determining whether master was under duty to provide servant safe place to work, actual facts prevailing at time of accident must be considered.
10. Master and Servant. — Whether master was under duty to furnish servant safe place to work becomes issue for jury where facts are in dispute.
11. Master and Servant. — Coal loader injured by fall of slate from roof of mine over tracks held justified in assuming premises were reasonably safe, in absence of notice.
It was shown that coal loaders were instructed to make inspections and set sufficient props against roof to secure sofety of premises, if necessary. It was further shown that inspector of master was under duty to visit premises and mark any place where props were needed; that inspector failed to make adequate inspection on day of accident or indicate imminence of danger. Place on roof from which slate fell was over track where coal car was standing.
12. Master and Servant. — Master having elected not to operate under Workmen's Compensation Law could not assert contributory negligence or assumption of risk (Ky. Stats., sec. 4880 et seq.).
13. Master and Servant. — Where master elected not to operate under Workmen's Compensation Law, any evidence of negligence and proximate cause presented case for jury (Ky. Stats., sec. 4880 et seq.).
14. Master and Servant. — Coal loader injured by fall of slate from roof of mine over track held not to create dangerous condition by loading out loose coal so as to render safe place doctrine inapplicable.
Coal loader at time of accident was not engaged in pulling of stumps or in removing support from overhanging slate, but was engaged in cleaning loose coal from tracks back of car which was incidental to loading cars with coal. Slate which injured loader fell from place on roof over track and struck car, broke, resulting in one piece falling upon loader.
15. Master and Servant. — General instructions to coal loaders to inspect working place held not to preclude operation of safe place doctrine.
16. Master and Servant. — Instruction on duty of coal mining company to furnish coal loader injured by falling slate reasonably safe place to work held proper, under evidence.
17. Master and Servant — In coal loader's action for injuries sustained when struck by falling slate, evidence showing requirements of good mining practice held competent.
Principal issue involved in case was whether defendant was under duty to exercise reasonable care to furnish coal loader reasonably safe place to work. Instructions given confined and conditioned liability of defendant solely to breach of duty to exercise reasonable care to provide safe place to work.
18. Appeal and Error. — Reversal may be ordered only for errors prejudicial to substantial rights of appellant.
Appeal from Webster Circuit Court.
WITHERS & LISMAN and J.C. CANNADY for apellant.
HENSON & TAYLOR and VERT C. FRASER for appellee.
Affirming.
Robert A. Fike recovered a judgment for $1,250 against the Duvin Coal Company for personal injury. The coal company has prosecuted an appeal, insisting that it was entitled to a peremptory instruction, and that it was prejudiced by errors in the instructions to the jury and in the admission of testimony. Fike was a coal loader employed by the defendant in its coal mine, and, while engaged in his work, was hurt by a fall of slate.
The argument of appellant for a peremptory instruction is predicated upon the assertion of an entire absence of proof tending to show any breach of duty owed by it to the plaintiff.
It is accurately assumed that the liability of the defendant depended upon proof of its negligence, proximately resulting in the injury to plaintiff, notwithstanding the fact that it had not elected to operate under the Workmen's Compensation Law (Ky. Stats., sec. 4880 et seq.). Horse Creek Mining Co. v. Frazier's Adm'x, 224 Ky. 211, 5 S.W. (2d) 1064; West Kentucky Coal Co. v. Shoulders' Adm'r, 234 Ky. 427, 28 S.W. (2d) 479.
The pertinency of that fact is confined to the defenses available, and does not affect the burden resting upon the plaintiff to prove primary negligence on the part of defendant, proximately producing the plaintiff's injury. Nugent Sand Co. v. Howard, 227 Ky. 93, 11 S. W. (2d) 985.
The case was pitched upon several grounds of negligence, but it was submitted to the jury solely upon the hypothesis of a failure of the defendant to exercise ordinary care to furnish the plaintiff a reasonably safe place to work, and the consideration of the argument will be confined accordingly.
The duty of the master to exercise ordinary care to provide the servant with a reasonably safe place to work is imposed by law, and, in circumstances where the duty obtains, it may not be delegated so as to excuse its nonperformance, 39 C.J., sec. 441, p. 308; sec. 445, p. 322; Interstate Coal Co. v. Molner, 150 Ky. 321, 150 S.W. 372; Kelly & Shields v. Miller, 236 Ky. 698, 33 S.W. (2d) 662; Northern Pacific Railway Co. v. Herbert, 116 U.S. 642, 6 S. Ct. 590, 29 L. Ed. 755.
In mining cases, the duty of the master respecting a safe place for his servants to perform the work assigned to them may or may not apply according to the particular circumstances prevailing at the time and place of the accident. Gatliff Coal Co. v. Wright, 157 Ky. 682, 163 S.W. 1110; Eagle Coal Co. v. Patrick, 161 Ky. 333, 170 S.W. 960; Trosper Coal Co. v. Crawford, 152 Ky. 214, 153 S.W. 211; Old Diamond Coal Co. v. Denney, 160 Ky. 554, 169 S.W. 1016. When a danger that may encompass a servant is created by him in the necessary progress of the work he is doing, the safe place doctrine has no application. Boyd v. Crescent Coal Co., 141 Ky. 789, 133 S.W. 777; Atlas Stone Co. v. Ingram, 193 Ky. 272, 235 S.W. 721; Proctor Coal Co. v. Beaver, 151 Ky. 839, 152 S.W. 965; Wight v. Cumberland T. & T. Co., 137 Ky. 299, 125 S.W. 718; Smith v. North Jellico Coal Co., 131 Ky. 196, 114 S.W. 785, 28 L.R.A. (N.S.) 1266; Wallsend C. & C. Co. v. Shields, 159 Ky. 644, 167 S.W. 918; Saxton Coal Co. v. Kreutzer, 202 Ky. 387, 259 S.W. 1022; North East Coal Co. v. Setzer, 169 Ky. 245, 183 S.W. 553.
But the master is obligated to see that the premises where the servant must work are reasonably safe when the servant assumes charge thereof. Stratton v. Northeast Coal Co., 164 Ky. 299, 175 S.W. 332; American Milling Co. v. Bell, 146 Ky. 68, 141 S.W. 1191; Parsley v. Horn, 196 Ky. 556, 245 S.W. 140.
The rules or customs of the mine are not conclusive, but may be waived or varied, and the actual facts prevailing in each case must be considered in ascertaining the rule applicable to such case. Borderland Coal Co. v. Kirk, 180 Ky. 695, 203 S.W. 534. And the facts decisive of the matter may be in such dispute as to require submission of the issue to a jury under adequate instructions embracing every hypothesis deducible from the evidence. Consolidated Coal Co. v. Music, 172 Ky. 153, 189 S.W. 200.
Appellant's position, sharply presented and ably argued, is that it was Fike's own duty to make safe the roof of the mine where he was working. The proof tended to show that the loaders, including Fike, were instructed to make...
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