Fee's Adm'X v. Mahan-Ellison Coal Corporation
| Citation | 241 Ky. 231 |
| Parties | Fee's Administratrix v. Mahan-Ellison Coal Corporation. |
| Decision Date | 24 November 1931 |
| Court | United States State Supreme Court (Kentucky) |
1. Master and Servant. — Negligence in master-servant relation is master's failure to observe duty owing servant.
2. Master and Servant. — To recover for servant's personal injuries or death, master's failure to perform duty owing servant must be shown, but for which failure injury or death would not have resulted.
3. Master and Servant. — Employer does not insure employee against injury or death in performance of employee's duties.
Employer's duty to employee is satisfied if he furnishes employee a reasonably safe place in which to work, reasonably safe material with which to do his work, and, where engaged with others, sees to it that the coemployees are sufficient in number to do the work on hand in a reasonably safe manner, and are reasonably qualified and skilled in the performance of the joint duty.
4. Master and Servant. — Employer is not liable for employee's death in performance of duty, unless cause thereof is affirmatively proved.
5. Master and Servant. — Submitting action for employee's death to jury is unauthorized, where verdict must rest solely upon speculation.
6. Master and Servant. — Generally, res ipsa loquitur doctrine does not apply where master-servant relationship exists.
7. Master and Servant. — To recover for servant's death in performance of duty, evidence must clearly show death necessarily resulted from master's failure to perform duty owing servant; but this may be shown by circumstances.
8. Master and Servant. — Plaintiff, suing employer for employee's accidental death, must show not only circumstances, and that information of cause is wholly within master's knowledge, but that no reasonable inference or hypothesis other than master's negligence explains accident.
9. Master and Servant. — Evidence authorized directed verdict for employer in action for death of mine employee found lying under derailed car, although track was defective, since there was no proof regarding cause of death.
Evidence disclosed that when the chief witness for plaintiff arrived at place where the cars were wrecked, within 4 or 5 minutes after the wreck occurred, he found deceased lying half way under one of the cars with one arm over his head, and it appeared that the wheels of the car had passed over his body; that all four of the wheels of one car were off the track, and two wheels of the second car were off the track; that deceased, at the time he was found under the car, was about ten or twelve feet from the "cupjoint" of the track; and that the wheels of the two cars, which were off of the track, had passed that point, but those of the cars which had not reached it, were on the track. Evidence did not show what caused deceased to be under the car or to be run over or killed by it, or that he was actually killed by the car.
Appeal from Harlan Circuit Court.
B.B. GOLDEN and J.S. GOLDEN for appellant.
T.E. MAHAN and WM. SAMPSON for appellee.
Affirming.
Roscoe Fee, a resident of Leslie county, Ky., was an employee of the Mahan-Ellison Coal Corporation, which was engaged in mining coal in Harlan county, Ky., on the 15th day of February, 1929. He had been in its employ about two weeks next before February 15, 1929, engaged in work on the inside of the mine as a motor coupler. In the performance of his duties, he had to travel with the motor, and when the empty cars came back through the mine to be placed for loading, and after they were loaded and before returning, he was required to couple them to the motor.
At one place on the track on which the motor and cars were operated, there was, what the miners term, "a high-joint at the switch point." At this place, the track was low and the switch point turned down. This caused the track to stick up and to make a bow or buckle. This condition of the track had existed for some time prior to the night of February 15, 1929. It was such as to cause the cars to jump the track and wreck at that place. It was in this condition when the cars wrecked at that point on the night of the death of deceased.
The chief witness for appellant claims that he arrived at the place where the cars were wrecked within four or five minutes after the wreck occurred, when he found deceased under one of the cars. He was lying about half way under it, with one arm over his head. It appeared that the wheels of the car had passed over his body. All four of the wheels of one were off of the track, and two wheels of the second car were off of it. The deceased, at the time he was found under the car was about ten or twelve feet from the "cup-joint" of the track. The wheels of two cars, which were off of the track, had passed that point, but those of the cars which had not reached it, were on the track. At the time the witness arrived at the scene of the wreck, the deceased was dead. Some blood was on the side of his face; his leg scarred, and appeared to be broken; his neck was limber, laying over on his shoulder, and seemed to be broken.
The appellant qualified as administratrix of the estate of the deceased. By this action, she sought to recover damages of the appellee resulting to the estate of deceased from his death.
It was set out in the petition that appellee was eligible to accept, but had not accepted the provisions of the Workmen's Compensation Law (Ky. Stats., sec. 4880 et seq.).
It was also set out that deceased was an employee of appellee; that his death resulted from an accident arising out of and in the course of his employment; and that it was the direct and proximate result of the negligence of the appellee in failing to furnish him a reasonably safe place to work; reasonably safe and sufficient tools and applicances with which to work, and a reasonably sufficient number of persons to assist him in the performance of his labors in which he was engaged at the time of his death. An issue was formed by appropriate pleadings, a jury impaneled and sworn, evidence heard in behalf of appellant, and, at its conclusion, the court gave an instruction directing the jury to find a verdict for appellee, which was accordingly done, and judgment entered dismissing her petition, from which she appeals.
The sole issue to be determined here is whether the court erred in giving a peremptory instruction to the jury. Negligence in the relation of master and servant is a failure of the master to observe some duty that he owes the servant. Horse Creek Mining Co. v. Frazier's Adm'x, 224 Ky. 211, 5 S.W. (2d) 1064. To recover for personal injuries or for death to a servant, it must be shown that the master owed the servant a duty which he failed to perform, and that but for its failure the injury or death would not have resulted. Hewitt Lumber Co. v. Cisco, 186 Ky. 635, 218 S.W. 296.
An employer does not insure his employee against injury or death in the performance of his duties. If he furnishes him a reasonably safe place in which to work; reasonably safe material with which to do his work; and, where engaged with others, sees to it that the co-employees are sufficient in number to do the work on hand in a reasonably safe manner, and are reasonably qualified and skilled in the...
To continue reading
Request your trial