Gatliff Coal Company v. Powers' Admr.

• Decision Date: 13 May 1927
• Citation: 219 Ky. 839
• Parties: Gatliff Coal Company v. Powers' Administrator.
• Court: United States State Supreme Court — District of Kentucky

219 Ky. 839

Gatliff Coal Company v. Powers' Administrator.

Court of Appeals of Kentucky.

Decided May 13, 1927.

1. Master and Servant. — Company not operating under the Workmen's Compensation Act (Acts 1916, c. 33, as amended), at the time when employee was fatally injured, cannot rely upon any defense based on contributory negligence or assumed risk.

2. Master and Servant. — Before the administrator of an employee can recover for employee's fatal injury while in defendant's employ, where defendant was not operating under the Workmen's Compensation Act (Acts 1916, c. 33, as amended), he must establish negligence of defendant which was the proximate cause of death.

3. Master and Servant. — Whether fall of slate in a mine causing fatal injury of plaintiff's intestate occurred from coal company's negligence in using an improper method of mining or from a danger which arose in the progress of and by reason of the work which plaintiff's intestate was employed to do held for jury.

4. Trial. — Instruction in action for negligence causing death of an employee, presenting the issue of the reasonableness of an order under which the employee was supposedly working at the time of his death, held erroneous, where there was no evidence whatever of such an order.

5. Trial. — Instructing jury to find against mining company if miner at time of fatal injury was where he had a right to be held erroneous, where the only issue on this point was whether it was reasonable for him to work on pillar in mine as he was doing, and, further, whether the injury was because of an improper mining method or a danger arising in the progress of employee's work.

Appeal from Whitley Circuit Court.

TYE & SILER for appellant.

H.C. GILLIS, R.C. BROWNING and R.L. POPE for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Reversing.

In the fall of 1923, the appellant, Gatliff Coal Company, was engaged in robbing the pillars and stumps in "13 right entry in its No. 3" mine. Pillar and stump numbered 10 were the furthest ones in this entry from the main entry. It is conceded that the appellee's decedent, George Powers, was employed to rob this pillar and stump.

It seems to be the theory of the appellant that Powers, under his employment, was required to rob this pillar and stump from room No. 10, but we can find no support for such contention in this record. It is silent as to how he was directed to rob this pillar and stump, and, as they formed the division between rooms No. 10 and No. 9, in the absence of some proof to the contrary, it must be presumed that Powers could rob this pillar and stump from either side if it was reasonable to do so. Powers worked a while on the pillar and stump he was employed to remove and then visited his parents in Tennessee for a week or so. While he was gone, the robbing work on the other pillars and stumps in this entry went on.

Appellee's theory is that the work on pillar 10 ceased while Powers was gone, but the record is also silent as to this fact. It may have ceased and again it may not. When Powers returned to his work, George Fox, who was working in the mine, got himself transferred to the position of Powers' assistant. At first the two men worked on pillar No. 10 from the side which abutted on room No. 10. However, due to a slate fall in this room and the fact that the floor of the room was on a much lower level than that of the entry, which fact made it very hard and sometimes impossible, without the aid of a third person, for these two men to push their loaded coal cars from the room to the entry, they decided that it would be best for one of them to work from the side of the pillar abutting on room No. 9. Pillar and stump No. 10 resembled in form the letter T. The horizontal portion of the letter represents the stump which abutted on the entry. The perpendicular portion of the letter represents the pillar. A little hallway ran from the entry into room No. 9, one wall of which was pillar No. 10. There was a little railroad track in this hall over which the coal cars were hauled. Powers and Fox desired to extend this track to the face of pillar No. 10. To do so, they decided to remove a portion of the coal which formed a part of the tip of the stump, that is, to use the illustration of the letter T, to remove a portion of the end of the horizontal line of this letter. Both Powers and Fox worked on the removal of this tip, Powers doing, perhaps, most of the work. They had scarcely removed the coal when they heard a cracking in the roof of room No. 9 from under which the coal had been removed. Fox remarked that he thought the noise came from a piece of slate, to which Powers responded: "Yes; we are both liable to get killed in a minute." About the time he uttered the last of this remark, a large piece of slate...