Gatliff Coal Co. v. Sumner

• Decision Date: 24 November 1922
• Citation: 196 Ky. 592,245 S.W. 144
• Parties: GATLIFF COAL CO. v. SUMNER.
• Court: Kentucky Court of Appeals

245 S.W. 144

196 Ky. 592

GATLIFF COAL CO. v. SUMNER.

Court of Appeals of Kentucky.

November 24, 1922

Appeal from Circuit Court, Whitley County.

Action by James Sumner against the Gatliff Coal Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Tye &amp Siler, of Williamsburg, for appellant.

John W Rawlings and J. W. Harlan, both of Danville, and R. L. Pope of Memphis, Tenn., for appellee.

THOMAS J.

Appellee and plaintiff below, James Sumner, filed this action in the Whitley circuit court against appellant and defendant below Gatliff Coal Company, seeking a judgment against it for damages sustained by plaintiff as the result of an injury to one of his legs while plaintiff was working in the mine of defendant as a hostler or scraper to one who was cutting the coal with a punching machine, and which injury, as alleged, was produced by the carelessness and negligence of defendant in failing to furnish plaintiff with a reasonably safe place to perform the work to which he had been assigned, and because of which a large rock fell upon plaintiff's leg and severely crushed and bruised his ankle, permanently injuring and partially destroying the use of it, and also caused plaintiff much physical and mental pain.

The answer traversed the allegations of the petition and also contained a plea of contributory negligence. The reply denied the latter plea, and in a second paragraph alleged that defendant was regularly engaged in the coal-mining business and employed in its mine, and which was necessary to its operation, more than five employees, and it therefore came within the operation of our Workmen's Compensation Act (Ky. St. §§ 4880-4987); that it had not, up to and including the day of the accident, accepted the terms thereof; and that under the provisions of section 4960 of the Statutes, which is a part of the act, the defenses of contributory negligence, assumed risk, and negligence of a fellow servant were neither of them available to defendant. Defendant moved to strike from the reply its second paragraph, but we do not find from the record that the motion was ever acted on, nor do we find any responsive pleading thereto, nor any order controverting its allegations.

A trial before a jury resulted in a verdict in favor of plaintiff for $2,500, upon which judgment was rendered, and which the court declined to set aside on a motion by defendant for a new trial, and it prosecutes this appeal, urging as the principal ground for reversal the refusal of the court to instruct the jury to return a verdict for defendant if they should believe from the evidence that defendant was guilty of contributory negligence, and which was the sole cause of his injury. Other grounds besides that one are contained in the motion for a new trial, such as the admission of incompetent evidence, the exclusion of competent evidence, and excessive damages, but we take it that counsel has abandoned them, since they are not mentioned or argued in brief, nor does the record disclose any grounds therefor. We will therefore confine this opinion to a discussion of the only point argued on the appeal.

Besides admitting in the pleading that the operations of defendant came within the provisions of the Workmen's Compensation Act, and that it had not accepted them, the evidence discloses no effort to deny those facts, which for the purposes of this appeal must be accepted as true. In the two very recent cases of West Kentucky Coal Co. v. Smithers, 184 Ky. 211, 211 S.W. 580, and Lamberg v. Central Consumers' Co., 184 Ky. 284, 211 S.W. 746, it was held that none of the defenses named were available to a defendant coming within the purview of the Workmen's Compensation Act and who had not accepted its terms. But it was furthermore held that, before liability would arise against such a defendant, the burden was on plaintiff to show that his injury was the proximate result of some negligence on the part of the defendant; in other words, that the failure of defendant to accept the provisions of the act did not change the rule as to its liability, but only deprived it of the defenses above named. It follows, therefore, that if there is any testimony proving negligence on the part of the defendant, a recovery may be had, notwithstanding there may also be testimony tending to prove contributory negligence on the part of plaintiff, or an assumption of risk by him. A proper solution of the question raised, therefore, will require a consideration of the testimony heard upon the trial.

At the time of the injury, plaintiff and his colaborer, Warfield were working in mine entry No. 10, which had been abandoned for some time...