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

• Decision Date: 21 December 1934
• Citation: 263 Ky. 309,92 S.W.2d 56
• Parties: GATLIFF COAL CO. v. HILL'S ADM'R.
• Court: Kentucky Court of Appeals

92 S.W.2d 56

263 Ky. 309

GATLIFF COAL CO. v. HILL'S ADM'R.

Court of Appeals of Kentucky

December 21, 1934

As Modified on Denial of Rehearing March 20, 1936.

Appeal from Circuit Court, Whitley County.

Action by Ernest Hill's administrator against the Gatliff Coal Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

THOMAS J., dissenting.

Tye Siler, Gillis & Siler, of Williamsburg, and T. E. Mahan, of Williamsburg, for appellant.

Pope &amp Upton, of Williamsburg, and Leslie W. Morris and Marion Rider, both of Frankfort, for appellee.

DRURY Commissioner.

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. St. § 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, by 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 work-place 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, § 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, §§ 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 so-called 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, yet withal impressively, and it will educate you so far as it goes as well as the proudest universities in the world. We cannot sustain defendant's objection to this testimony. We say this without overlooking what is said in 17 Cyc. 267 and in 22 C.J. p. 728, §§ 823-832.

Hypothetical Questions.

Plaintiff propounded hypothetical questions to these witnesses embodying all those facts favorable to him which he had introduced evidence to establish, and the defendant objected and now complains because these questions did not embody some facts favorable to it which it had brought out by cross-examination. The point is not well taken. In Axton v. Vance, 207 Ky. 580, 269 S.W. 534, 537, we said: "Hypothetical questions can be based upon any state of facts that any of the testimony sustains, although there may be conflicting testimony." These witnesses were there for the defendant to cross-examine, and it could propound to them questions embodying facts favorable to it and require that they be answered, and thus endeavor to weaken or destroy the testimony given in response to the questions propounded by plaintiff. See 22 C.J. p. 728, § 822 et seq.

Alleged Right to a Directed Verdict.

At the conclusion of the evidence for the plaintiff, the defendant's motion for a directed verdict was overruled, and it complains of that, thereby raising two questions: Had plaintiff alleged a cause of action? Had plaintiff any proof to establish his cause of action? He must have both to withstand such a motion. See Utterback's Adm'r v. Quick, 230 Ky. 333, 19 S.W.2d 980. We shall dispose of these in their order.

We have set out above what was alleged in pleading regarding the issue that was submitted, and defendants say this was only a conclusion of the pleader, and we must admit the allegations of negligence regarding adoption of mining methods were rather general, but we regard them as sufficient. The rule is thus stated in Monroe v. Standard Sanitary Mfg. Co., 141 Ky. 549, 133 S.W. 214, 215: "A general allegation of negligence is allowed. The negligence is the ultimate fact to be proved, and is not a legal conclusion. *** In actions of personal injury resulting from negligence, it was and still is sufficient for the plaintiff to allege, in general terms, that the injury complained of was occasioned by the carelessness and negligence of the defendant, without stating the circumstances with which the infliction of the injury was accompanied, in order to show that it was occasioned by negligence. *** Under a general allegation of negligence, where the extent of the injury and the manner of its infliction are stated, a party may prove any negligent act of the defendant, or any of its agents or servants superior in authority to the complainant, arising out of the doing of the act resulting in the injury. But, where negligence in other respects than the doing of the act resulting in the injury is relied upon, it must be pleaded." To same effect is Braden's Adm'x v. Liston, 258 Ky. 44, 79 S.W.2d 241. The petition meets these requirements. The better way to have dealt with a petition as general as this one is the way followed and approved in Ohio Valley Coal & Mining Co. v. Heine, 159 Ky. 586, 167 S.W. 873.

Certainly after two trials...