Gibralter Coal Mining Co. v. Nalley

• Decision Date: 11 May 1926
• Citation: 214 Ky. 431
• Parties: Gibralter Coal Mining Company v. Nalley.
• Court: Supreme Court of Kentucky

Page 431

214 Ky. 431

Gibralter Coal Mining Company v.Nalley.

Court of Appeals of Kentucky.

Decided May 11, 1926.

1.Master and Servant — Complaint Failing to Allege Employer Knew of Unsafe Condition of Working Place Held Not to State Cause of Action.— Complaint for injuries, alleging failure of employer to exercise reasonable care to provide safe place to work, but failing to allege that defendant knew or by the exercise of ordinary care could have known of the alleged unsafe condition or that plaintiff did not know or by the exercise of care could not have known thereof, held not to state cause of action.

2.Master and Servant — Employer Not Accepting Compensation Act Cannot Assert Defenses of Contributory Negligence or Assumption of Risk (Workmen's Compensation Act[Ky. Stats., Sections 4880,4987]).— Employer not accepting provisions of Workmen's Compensation Act(Ky. Stats., sections 4880,4987) cannot assert defenses of contributory negligence or assumption of risk, in action for injuries to employe.

3.Master and Servant — Employe, to Recover for Injuries from Unsafe Working Place, Must Allege and Prove Employer's Knowledge of Unsafe Condition.— Employe, to recover for injuries from defective tools or unsafe place to work, must allege and prove that place was unsafe, and that such fact was known to employer, or by exercise of ordinary care could have been known to him, in time to have remedied defects, and that employe himself did not know, and by exercise of ordinary care could not have known, of dangerous condition.

4.Master and Servant — Evidence of Employer's Knowledge of Unsafe Condition of Working Place is Incompetent, in Absence of Averment of Fact.— Evidence that employer knew, or by exercise of ordinary care could have known, of unsafe condition of working place, is incompetent in absence of an averment of such fact, and cannot be basis of recovery.

Appeal from Muhlenberg Circuit Court.

EAVES & SANDIDGE for appellant.

LUKE TEAGUE and W.O. SMITH for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON.

Reversing.

Appellee, Nalley, a coal miner of six years' experience, was injured in his foot and ankle by the falling of coal while he was engaged in mining for appellant coal company in January, 1924, and instituted this suit in the Muhlenberg circuit court against the company to recover damages for its failure to exercise reasonable care to provide him with a safe place in which to perform his work of mining and loading coal in its mines, and recovered a verdict for $400.00, upon which judgment was entered and from which judgment this motion for appeal is prosecuted.

While appellant company relies upon several grounds for reversal of the judgment, including the admission of incompetent evidence in the form of X-ray pictures, over its objection, we think its second complaint, "error of the court in refusing to direct a verdict in its favor," based upon the following statement taken from its brief, "The action is based on the alleged failure of appellant to furnish appellee a reasonably safe place to work.It is not alleged in the petition that appellant knew, or by the exercise of ordinary care could have known, of the alleged unsafe condition of the working place.Neither is it alleged that appellee did not know or by the exercise of ordinary care could not have known thereof.There being no cause of action stated in the pleading, a directed verdict should have been given," is sufficiently sustained by the record, to warrant the granting of the motion for appeal and a reversal of the judgment.A brief statement of the facts is necessary to an understanding of the legal questions which we are about to consider.Appellant was driving an entry in the mines; this entry was about 10 feet wide; the coal was about five feet thick.On the left about eight feet from the face of the coal in the head of the entry, a cross-cut or breakthrough was laid off and started.Only a shot or so of coal had been taken from the breakthrough.In the middle of the entry was a track of steel rails about 42 inches wide on which the mining cars ran.The car extended out over the rails some six inches or more on either side; between the edge of the car and the face of the coal on the side of the entry next to the initiated breakthrough there was a space of about 36 inches, or a little bit less, from which the coal had been taken in driving the entry.The roof over this space was found to be dead and unsafe, and the company had caused its timberman to set a prop or post about six inches in diameter under this roof at a point about midway between the left-hand edge of the coal car and the rib of the coal on the left side of the entry, leaving a space of about 15 inches between the post and the rib and about 20 inches between the post and the edge of the car when standing on the track opposite the post.In mining the coal in the entry as well as in the breakthrough undercutting machines were employed by the company.When the coal was undercut the miners, such as appellant, would drill holes into the face of the coal which was undercut, fill them with powder and fuse, in the afternoon, so that they might be fired at night by men employed by the company for that purpose.The smoke would clear away before working hours next morning.These methods were employed in the entry and breakthroughs where appellee, Nalley, was at work.An undercut had been made in the breakthrough and he had drilled two holes into the coal, filled them with powder and fuse, and these had been fired on the night before his injury, bringing down a large heap of...