Empire Coal and Mining Company v. McIntosh
| Decision Date | 14 February 1885 |
| Parties | Empire Coal and Mining Company v. McIntosh. |
| Court | Kentucky Court of Appeals |
APPEAL FROM CHRISTIAN CIRCUIT COURT.
J. J. LANDES AND PETREE & LITTELL FOR APPELLANT.
JNO. W. McPHERSON AND CAMPBELL & GAITHER FOR APPELLEE.
CHIEF JUSTICE HINES DELIVERED THE OPINION OF THE COURT.
John McIntosh, while in the employ of appellant as a common laborer engaged in mining coal, was killed by the falling of a portion of the roof of the mine. This action was brought by the widow of McIntosh undersection 3, of chapter 57, of General Statutes, which authorizes an action by the widow, heir or personal representative where the killing is the result of willful negligence and permits the recovery of punitive damages. The petition alleges willful negligence, and that it consisted in the failure of appellant to prop the roof of the mine entry where the deceased was required to work. The answer denies this negligence, and alleges contributory negligence on the part of the deceased, in that he was not at the proper place for his work at the time of the killing, and that he failed to prop the entry to his own mining room, as it is charged it was his duty to do; and further, that the deceased, in violation of the orders of the superintendent of the mine, willfully and negligently removed a portion of a column of coal that was left for the support and did support the roof, and that by reason of such removal the killing occurred.
Upon these issues the case went to trial, and a verdict for $3,000 was returned, and from the judgment thereon this appeal is taken. On the conclusion of the evidence appellant asked for and obtained directions to the jury for special findings on questions propounded by appellant. The court also, at the instance of appellee, directed a separate general verdict, and of its own motion directed the jury to ascertain the damages under the special findings, and also instructed them upon the whole law of the case and directed them to return a general verdict.
The first complaint is that it was error in the court to direct any other than a special verdict when appellant had requested that none other be directed. This objection is apparently based upon subsection 2, of section 327, of the Code, which provides that on the finding of a special verdict "the jury shall return a special verdict only, and the court shall render judgment upon it." The court did not err in this.
The subsection quoted is intended as a limitation upon the power of the jury to return any character of verdict when not otherwise directed by the court. It was not intended to restrict the court as to the character of verdict it might direct. Section 317 provides that in case of special verdicts the court may reserve the questions of law until the special findings are had. It is not compelled to do so. Where the court directs special findings it should be in reference to every fact essential to make out a cause of action or defense, so that, on the return of the answers, there is nothing for the court but to apply the law to the established facts, and enter judgment accordingly. In such case there is no necessity for a general verdict, for the special, when of the character indicated, controls the general verdict, but such a general verdict may be directed at the pleasure of the court and as well a separate general verdict. Where all the essential facts are found under special direction the question of negligence and its degrees is a question of law for the court alone. (Wilty v. C. & O. & S. W. R. R. Co., Kentucky Law Rep., volume 6, number 6, 82 Ky., and Adams' Adm'r R. R., MS. opinion, March 12, 1885.)
The special findings of facts asked for by appellant, with the answers thereto, are as follows:
First. Did the roof or ceiling of defendant's mine at the place where John McIntosh was killed, fall for the want of props under said ceiling?
Yes.
Second. If there were props under said roof or ceiling at the point mentioned in question number one, before said John McIntosh was killed, were said props knocked down or displaced? If so, when and by whom was it done?
No props.
Third. On the day and at the time of the said accident, did John McIntosh know that said roof or ceiling at said place was unpropped?
W...
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