Gatliff Coal Co. v. Hill's Adm'R

• Decision Date: 20 March 1936
• Citation: 263 Ky. 309
• Parties: Gatliff Coal Co. v. Hill's Adm'r.
• Court: United States State Supreme Court — District of Kentucky

263 Ky. 309

Gatliff Coal Co. v. Hill's Adm'r.

Court of Appeals of Kentucky.

Decided December 21, 1934.

As Modified on Denial of Rehearing March 20, 1936.

1. Evidence. — In action for miner's death, experienced miners held properly admitted, as skilled witnesses, to give their opinions based on their observations, and as experts to give their opinions based on observations made and testified to by others and submitted to witnesses in hypothetical questions.

2. Evidence — Plaintiff's hypothetical questions embodying facts which he had introduced evidence to establish held not objectionable because not embodying facts which defendant had brought out on cross-examination.

3. Evidence. — Hypothetical question can be based on any state of facts that testimony sustains, although there may be conflicting testimony.

4. Trial. — Defendant's motion for directed verdict made on conclusion of plaintiff's evidence raises question whether plaintiff has alleged cause of action and whether proof establishes such cause of action.

5. Master and Servant. — Petition in action against employer for death of miner held to sufficiently charge negligence regarding adoption of mining methods.

6. Negligence. — Under general allegation of negligence, where extent of injury and manner of its infliction are stated, party may prove any negligent act of defendant or any of its superior agents or servants arising out of doing of act resulting in injury.

7. Negligence. — In personal injury action resulting from negligence, it is sufficient for plaintiff to allege in general terms that injury was occasioned by negligence of defendant without stating circumstances with which infliction of injury was accomplished,

8. Master and Servant. — Employer's duty of adopting proper methods for protection of employees engaged in extrahazardous work cannot be delegated so as to avoid consequence of adoption of improper methods (Ky. St. sec. 2726-7).

9. Master and Servant. — In action for death of miner fatally injured by falling slate, whether employer was negligent in method of drawing pillars held for jury (Ky. St. sec. 2726-7).

10. Master and Servant. — In action for death of coal miner fatally injured by falling slate, instructions regarding improper method of mining held not prejudicial.

11. Trial. — In action for death of miner fatally injured by falling slate, argument of plaintiff's counsel that, if employer did not know it had pursued improper method of mining, employer would have introduced witnesses to prove facts, held not improper.

12. Death. — $7,500 damages for death of 25 year old coal miner who at time of fatal injury was earning between four and six dollars per day held not excessive.

13. Master and Servant. — Operator of coal mine cannot shift statutory duty of giving special care to workmen drawing pillars by adoption of rule by which it imposed that duty on employee (Ky. St. sec. 2726-7).

14. Master and Servant. — Employer which has not accepted Workmen's Compensation Act, cannot avail itself of any contributory negligence or assumption of risk on part of employee (Ky. St. sec. 4880 et seq.).

15. Master and Servant. — Where employer had not accepted Workmen's Compensation Act, employee's negligence must have been only negligence, and employer must have been guilty of no negligence before employer could escape liability because of employee's negligence (Ky. St. secs. 4880 et seq., 4960).

16. Jury. — Complaint as to manner in which jury panel was made up held too late, where made for first time after verdict.

17. Witnesses. — Where transcript of testimony of witness, dying after first trial, was read at second trial, evidence that deceased witness had made contradictory statement held inadmissible, since proper foundation could not be laid (Ky. St. sec. 4645a-5).

Thomas, J., dissenting.

Appeal from Whitley Circuit Court.

TYE, SILER, GILLIS & SILER for appelant.

POPE & UPTON and LESLIE W. MORRIS adn MARION RIDER for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

From a $7,500 judgment in favor of the appellee for the alleged negligent killing of his intestate, the Gatliff Coal Company has appealed. The Accident.

On Tuesday, October 20, 1931, the Gatliff Coal Company put Ernest Hill to work drawing a pillar between rooms 19 and 20 on the east side of its tenth right entry off of its third main. While he was working on this pillar he was killed, Friday, October 23, 1931, by a large slab of stone which fell upon him from the roof. Hill was 25 years of age, and was earning between $4 and $6 per day. The Gatliff Coal Company, though employing enough men to do so, had not elected to conduct its operations under the Workmen's Compensation Act (Ky. Stats., sec. 4880 et seq.).

The Issue.

Plaintiff charged in his petition that his said decedent had been taken from his regular working place and where the conditions were unlike those complained of and placed in said work-place where he was killed, and that the natural conditions in the roof of said work-place to which he was removed by defendant, he being inexperienced in such robbing work, were very dangerous, quite unsafe, and altogether unfit for a work-place, and, the careless and negligent system and method the defendant had adopted in having said work done, made said work-place still more dangerous by reason of causing extra weight to be thrown over where he was required to work, and defendant further negligently failed to have said work-place and the overhead conditions properly inspected, all of which acts of negligence on the part of the defendant, concurring proximately and cooperating the one with the other, caused a large block of slate to fall from the roof of said workplace and instantly kill his decedent, Ernest Hill, and but for which acts of negligence on its part same would not have occurred. He then charges the defendant knew, or by ordinary care could have known, the foregoing, and his decedent did not and could not.

Without demurring, defendant first categorically denied the petition, then charged Hill's own negligence was the sole cause of his death, and then set up a copy of a rather elaborate system of rules it had adopted (often referred to in this record as the "Gatliff Code"), of which it alleged it gave Hill a copy, and the violation of which it alleges caused Hill's death. Reply made the issue.

Many grounds were urged for a new trial below and are relied on for reversal here, which we shall state as we reach them in our disposition of them.

Alleged Errors in Evidence.

We shall disregard all evidence upon issues not submitted to the jury, for that could have had no effect upon the result.

Testimony of the Miners.

The plaintiff introduced five miners whose average age is 41 years and whose mining experience averages 26 years. The effect of the testimony of these men was to show the method adopted by the coal company in drawing these pillars was unusual and unsafe and tended to produce strains in the roof and to cause slabs of stone to fall therefrom. Space forbids our copying or quoting the exact language of each witness, but we have stated what it conduced to prove.

Aside from trivial questions as to age, experience, etc., the defendant objected to about all of this testimony and excepted when its objections were overruled. These men testified in part as skilled witnesses and in part as experts.

In Evans v. Com., 230 Ky. 411, 19 S.W. (2d) 1091, 1096, 66 A.L.R. 360, under [4], we said:

"Ordinarily a witness is said to testify as an expert when a state of facts, observed by some one else, is hypothetically submitted to the witness, and he is asked, in view of those facts, to state what his opinion is, whereas a man skilled in a particular business, who makes his own observations, and testifies to what he has observed and his conclusions therefrom, is regarded as a skilled witness. He occupies the same position as any other witness, except that it is recognized that within certain lines he possesses a superior knowledge which enables him to understand, as one without such special knowledge could not, what he has observed."

As experienced miners, these men were properly permitted as skilled witnesses to give their opinions based upon their own observations, and as experts to give their opinions based upon observations made and testified to by others and submitted to those witnesses in hypothetical questions. See Evans Case, supra, and 22 C.J. p. 704, sec. 792. The defendant had opportunity to test the accuracy of this evidence by cross-examining these witnesses, and it did not fail to do so. How such witnesses should be questioned is well set out in 22 C.J. pp. 705 and 706, secs. 794 and 795. The coal company does not complain of any particular question and answer or of the testimony of any particular witness, but attacks this testimony as a whole, as will be seen from this which is taken from its brief:

"It was unjust, illogical and incompetent to permit a plaintiff in a case of this kind to introduce socalled expert testimony of ignorant coal miners that a method or plan adopted by a mine operator for mining coal or doing robbing work was improper, negligent, or an unsafe method."

We do not know these witnesses, and they may be ignorant, as the defendant claims, but after 25 years' experience they know more about conditions in a coal mine than the members of this court. If by some chance any member of this court were put to work in this or any other coal mine, or even to find his way out, and any one of these old miners was kind enough to offer to show him how to do his work in safety or to find his way out without getting hurt, such member would follow those instructions as obediently as a little child, and there is no good reason for refusing to hear what they may say in a courtroom when we would accept it so implicitly in a coal mine. The university of hard knocks imparts its instruction crudely, often cruelly,...