Eagle Coal Co. v. Patrick's Adm'r

• Decision Date: 01 December 1914
• Citation: 170 S.W. 960,161 Ky. 333
• Parties: EAGLE COAL CO. v. PATRICK'S ADM'R.
• Court: Kentucky Court of Appeals

170 S.W. 960

161 Ky. 333

EAGLE COAL CO. v. PATRICK'S ADM'R.

Court of Appeals of Kentucky.

December 1, 1914

Appeal from Circuit Court, McCreary County.

Action by Henry A. Patrick's administrator against the Eagle Coal Company. From a judgment for plaintiff, defendant appeals. Reversed.

O. H Waddle & Son, of Somerset, for appellant.

R. L Pope, of Williamsburg, J. E. Stephens, of Pine Knot, and W F. Hinkle, of Whitley City, for appellee.

HANNAH J.

The evidence in this record is far from clear. It indirectly appears from the evidence that a drawing was made on the floor in front of the jury and used on the trial, but no map or drawing accompanies the record. As nearly as we have been able to determine the facts they are substantially as follows:

Henry A. Patrick and one Loudermilk, coal miners, were engaged in the mine of the Eagle Coal Company in extracting or mining coal, for the purpose of forming a passage from the air course to a room on the left thereof. The passage so being formed, it seems, was about eight or ten feet wide, though there is no direct evidence on this point. How far it had penetrated from the air course, we are unable to ascertain from the record. The miners were preparing to shoot down a block of coal, when a mass of the room formation fell upon Patrick, causing injuries from which he soon died. His administrator instituted this action in the McCreary circuit court against the coal company to recover damages for his death. The jury returned a verdict in plaintiff's favor in the sum of $2,750, and the coal company appeals.

The only witness introduced bearing on the question of how or the condition of the place where the accident happened was John Lynch, and his entire testimony on that subject is as follows:

"He was killed right in the head in the face of the coal, * * * right against the face of the coal. * * * The best I remember about it, it was a little after 10 o'clock when the rock fell on him. * * * My job was to trap this door and to fire this furnace. I was inside. I was sitting at the mouth of this (indicating) on a can. They shot at any time they got their hole ready, and when they would come around here in the room where they kept the powder and made the powder, I would go and fix the fire; and when they would fire their shot they would go up the entry, and I would go out at the door to keep any one from passing when he would go in there to dynamite the shot. It is there yet I reckon. I went and fixed my fire, and come back here (indicating), and I stayed there until he tamped the hole. Q. That is, Patrick? A. Yes. Loudermilk was here in the corner putting in the stuff with a pick. After he got his hole tamped I started to go back, and just as I set down and blowed out my light, just as I set down I heard the rock fall, and Loudermilk hollered, and I jumped and run back. When I got there, they had called in a lot of the day hands. I cotch my lamp and lit it and went in where he was. I found him laying under the rock, his body with his head out. Q. Tell the jury how big a block of slate that was that fell on this man and mashed him up? A. It was a big rock. Q. Tell the jury how much you think it would weigh? A. Several thousand pounds. Q. About how long was it? A. About 10 or 12 feet long. Part had broken off. I could not tell you about how long the whole business of it was, but the little piece I expect was some 10 or 12 feet long. * * * That part that broke off put to it, it might have been something like 15 feet long--all of it. Q. What was done with him? A. When Loudermilk hollered for me and I went in there, he had a feed bar or something under the slate and I went in there and grabbed hold of this feed bar and we lifted. I did with all the strength I had, and we never moved the rock. I then went out and hollered for help. They did not put in any shot that day. They had shot the day before."

Loudermilk did not testify, and it will be seen from the preceding quotation that there is but little evidence to explain how and why the fall of the roof occurred. It will be seen that the piece of rock or slate which fell on Patrick was 10 to 15 feet long, possibly longer; but whether it fell entirely from the roof of the passage where he was working, or whether it extended out into the air course, is not shown. Whether any attempt had been made by Patrick and Loudermilk or any one else to support the roof from which it fell is also a matter of uncertainty, as there is no evidence on this question.

Under the pleadings and proof produced, the issue was: Whose duty was it to make safe the roof of the place where Patrick was working, at the time he was killed? This duty is not fixed by law. It is a duty which by agreement or by custom may be imposed upon either the miner or the mine operator. Old Diamond Coal Co. v. Denney, 160 Ky. 554, 169 S.W. 1016. Where it is not fixed by agreement between the miner and the operator, it depends upon the rule or custom in force at the time of the injury; and this rule or custom may be shown by witnesses who exhibit sufficient and proper qualifications knowledge, and ability to testify as to what the rule or custom was in that respect. The duty to make safe the place where the miner is extracting coal, being a duty not fixed by law, but by the mining contract, or, in the absence of a contract, by the rule or custom in force in the mine at the time, it is...