Goins v. North Jellico Coal Co.

• Decision Date: 19 October 1910
• Citation: 131 S.W. 28,140 Ky. 323
• Parties: GOINS v. NORTH JELLICO COAL CO.
• Court: Kentucky Court of Appeals

131 S.W. 28

140 Ky. 323

GOINS v. NORTH JELLICO COAL CO.

Court of Appeals of Kentucky.

October 19, 1910

Appeal from Circuit Court, Knox County.

Action by Milton Goins against the North Jellico Coal Company. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

Sawyer A. Smith and Richard S. Rose, for appellant.

Pitzer D. Black, Benjamin B. Golden, James D. Black, and William R Black, for appellee.

HOBSON J.

Milton Goins, while getting out coal for the North Jellico Coal Company in a room in its mine, was injured by a piece of slate falling on him, and brought this suit against the company to recover for his injuries. At the conclusion of the evidence offered by him, the defendant moved the court to instruct the jury peremptorily to find for it. The court took the motion under advisement, and directed the defendant to go on with its evidence. At the conclusion of the defendant's evidence, the court sustained the motion, and the jury having found for the defendant, and the plaintiff's petition being dismissed, he appeals.

When the plaintiff introduces his evidence, and at its conclusion the defendant moves the court to instruct the jury peremptorily to find for it, whether the motion is then determined by the court or not, it must be decided on the plaintiff's evidence without reference to any facts shown by the evidence introduced on behalf of the defendant; for in so far as there is a conflict in the evidence, the question, if material, is for the jury. The case before us therefore must be determined on the plaintiff's evidence without reference to any fact shown by the testimony for the defendant. The facts shown by the plaintiff's testimony are these: Goins was an experienced miner, and had been at work as a miner seven or eight years. He had worked for the defendant five or six years. He and his brother, who was also an experienced miner, had entered into a contract with the defendant to mine for it coal in several rooms in one part of its mine. They were paid by the ton for the coal they got out, and they employed their own assistants. They cut under the coal with a machine furnished by the defendant. They then blew the coal down, and, after it was blown down, they loaded it on cars. They furnished all the tools they used except the machine for cutting under the coal. It was their duty to get the slate down off the roof of the mine after the coal was blown down, and, after they got the slate down, certain hands in the mine, known as gin hands, moved the slate back. The gin hands had nothing to do with the getting down of the slate. Goins and his brother got the slate down and notified the gin hands when they were ready for them to move the slate out of their way. There was several inches of slate above the coal which had to be taken down after a blast was made. About 150 men worked in the mine. There were 10 or 15 gin hands who worked under a boss, and waited on all the miners in the way indicated. On the morning of the accident Goins marked at the mouth of the mine some posts to be brought in; the custom being for the miners to mark the posts and leave them there, and they were then brought in on the motor to the room indicated by the marks. He wished some caps also, but there were no caps there to be marked. As he went into his room on the motor Goins saw the gin boss at the tool house, and asked him to send him a gin hand, telling him that he had broken the handle out of his hammer, and that he could not gin any slate that day. The boss said that he would send a ginman, or words to that effect. Goins went on to his room and commenced loading the coal which he had blown down the day before. He set up three timbers which he had, and did not set up any more because he had no more; those that he had marked not having been brought in. When he had worked four or five hours, a piece of slate 15 feet long and 5 feet wide fell from the roof, catching him under it and inflicting painful injuries. The ginman had not been sent. It is insisted for him that he was entitled to recover on two grounds: First, because the gin boss had not sent the ginman as he had promised; second, because the company had failed to furnish him with posts and caps, as it...