Harris v. Rex Coal Co.

• Decision Date: 08 November 1917
• Citation: 197 S.W. 1075,177 Ky. 630
• Parties: HARRIS v. REX COAL CO.
• Court: Kentucky Court of Appeals

197 S.W. 1075

177 Ky. 630

HARRIS v. REX COAL CO.

Court of Appeals of Kentucky.

November 8, 1917

Appeal from Circuit Court, Harlan County.

Action by Lutitia Harris against the Rex Coal Company. From a judgment for defendant, dismissing the petition, plaintiff appeals. Judgment reversed, and cause remanded for new trial consistent with the opinion.

Rose &amp Huff, of Harlan, for appellant.

H. M Brock and J. S. Forester, both of Harlan, for appellee.

CLARKE J.

In December, 1914, Bona Harris, while working for the Rex Coal Company, was injured, and within a few days thereafter died. His father, Luke Harris, was appointed and qualified as administrator of his estate, and as such attempted some sort of a settlement with the coal company of its liability for the death of Bona Harris.

The mother, Lutitia Harris, alleging that the death of Bona Harris resulted from the negligence of the coal company, that the attempted settlement with Luke Harris, as administrator was fraudulent, and that he refused to institute suit against the company, filed this action against the coal company to recover damages for the death of Bona Harris, who left surviving him neither widow nor children. This she had a right to do upon the refusal of the administrator to sue although the right of action was, under section 6, Kentucky Statutes, originally in him. McLemore v. Sebree Coal & Mining Co., 121 Ky. 53, 88 S.W. 1062, 28 Ky. Law Rep. 25. The coal company answered, traversing the allegations of the petition, and pleading contributory negligence, assumed risk, settlement with the administrator, and that the accident resulted from the act of a fellow servant of decedent, for which, if negligence, the company was not liable. By reply, plaintiff put in issue all of the allegations of the answer, except that it was admitted that the accident resulted from the negligent act of one of defendant's employés, but that he was a fellow servant of decedent was denied. At the completion of plaintiff's proof, upon motion of the defendant, the jury were directed to return a verdict for the defendant, and a judgment was entered thereon, dismissing the petition.

In directing the verdict, the court stated that it was done because the proof failed to show clearly or sufficiently what servant of the company was responsible for the accident, but did show that the only employés that could have been responsible for the accident were fellow servants of decedent. By both the pleadings and the evidence it is shown that, at the time of the accident, decedent, with two other employés of defendant, was engaged in moving loaded coal cars from the mouth of the mine to the top of a steep incline, about 31 feet, down the incline about 600 feet, and from the bottom of the incline across a high trestle to the tipple at the railroad track, and in returning the cars, after they had been emptied at the tipple, back across the trestle to the foot of the incline, up the incline on a parallel track to the top of the incline, and back to the mouth of the mine; that the cars were moved up and down the incline by a cable, passing around a drum at the head of the incline operated by a drum man; and that it was the duty of the decedent to release the cable from the loaded cars at the foot of the incline, follow these cars across the trestle, stop them by "spragging" at the tipple, dump the coal out of the cars, push the empty cars back across the trestle upon a track beneath the one upon which the loaded cars crossed the trestle, and at the foot of the incline attach the cable to the empty cars, and then signal the drum man to raise the empty cars and lower another trip of loaded cars; that, when the empty cars reached the top of the incline, it was the duty of the third employé of the company engaged in these operations, called a "hostler," to take charge of the empty cars at the top of the incline, mount the first car arriving at the top, and, when all of the cars were safely up the incline, to release the cable and take the empty cars back to the mouth of the mine.

The defendant, in its answer, alleged that the accident was caused by the hostler at the top of the incline negligently releasing the cable from the front car before the last car had reached the top of the incline, there being three cars in the trip of empty cars, and that, by reason of his having prematurely detached the cable before the last car reached the top of the incline, its weight pulled the three cars back down the incline, and that they ran against and injured decedent, while he was following a trip of loaded cars across the trestle. That the accident was so caused was admitted by plaintiff's reply. So it is immaterial whether the evidence, introduced by plaintiff, did or did not show clearly or sufficiently which of the employés of defendant caused the accident, as this fact was admitted by the pleadings. There was no issue upon this question, and the court was not authorized, because of the lack of proof on this point, to direct the verdict.

The court was equally in error in holding that the proof showed that the hostler, whose negligent act is admitted to have resulted in the accident, was the fellow servant of decedent. At the time of the accident, decedent was engaged at the foot of the incline in conducting three loaded...