Green River Coal & Coke Co. v. Phaup

• Decision Date: 07 October 1909
• Citation: 121 S.W. 651,137 Ky. 34
• Parties: GREEN RIVER COAL & COKE CO. v. PHAUP.
• Court: Kentucky Court of Appeals

121 S.W. 651

137 Ky. 34

GREEN RIVER COAL & COKE CO. v. PHAUP.

Court of Appeals of Kentucky.

October 7, 1909

Appeal from Circuit Court, McLean County.

"To be officially reported."

Action by Levia Phaup against the Green River Coal & Coke Company. From a judgment for plaintiff, defendant appeals. Reversed.

Belcher & Sparks, for appellant.

R. Y Thomas, Jr., for appellee.

CLAY C.

Appellee Levia Phaup, instituted this action against appellant, Green River Coal & Coke Company, to recover damages for personal injuries. The jury returned a verdict in his favor for $1,500. From the judgment based thereon this appeal is prosecuted.

Several grounds for reversal are assigned, but we deem it necessary to consider only the question whether or not a peremptory instruction should have gone in favor of appellant. The negligence charged in appellee's petition and amended petition was twofold: First, that appellant piled cinders in the middle of the track along which appellee had to drive a mule in appellant's mine so as to frighten the mule and cause it to kick and run away; second, that the door of the car to which the mule was attached was sprung over the bumper so as to entirely cover it and thus prevent appellee from standing thereon, that because of the defective condition of the car he was unable when the mule ran away to loosen the mule from the car.

The evidence for appellee is as follows: Appellee at the time he was injured was engaged in driving a mule in appellant's mine. In the entry in which he was working there was not much more than enough room for the car to pass. A short time previous to the accident appellee and John Hunt, the boss driver, Tom Gardner, the second boss, and Tom Graves, inside manager of the mines, took about a half car load of cinders and put them in some holes in the track. The cinders were left in piles about six inches high, although it was customary to level them down. Thereafter the appellee drove the mule back over these cinders. At that time it did not take fright. When appellee went to get on the car, which he was riding at the time of the injury, he saw that the door was sprung out over the bumper. He put one foot on the spreader stick and the other on a piece of iron projecting out in front of the car. After going a short distance, the mule came to the point where the ashes were piled, became frightened and began to kick and run away. The car jumped the track, and appellee fell to the ground. He was badly bruised about the back and legs. If there had been bumpers on the car, appellee could have stood on them and unhitched the mule, thus preventing the injury.

It is perfectly apparent, from appellee's own testimony and from that of other witnesses, that he knew of the alleged defective condition of the car. The defect, if any there was, was right before his eyes. With full knowledge of it and without complaint, he proceeded to ride on the car without any direction so to do, and thereby assumed the risk of any danger incident to its defective condition. ...