Helton v. Gunn Coal Min. Co.
| Decision Date | 26 February 1935 |
| Citation | 79 S.W.2d 695,258 Ky. 168 |
| Parties | HELTON v. GUNN COAL MINING CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bell County.
Action by William McKinley Helton against the Gunn Coal Mining Company. From a judgment on directed verdict in favor of defendant, plaintiff appeals.
Reversed.
Golden Lay & Golden, of Pineville, for appellant.
W. T Davis, of Pineville, for appellee.
This is an action to recover damages for an injury sustained by William McKinley Helton, an employee of the Gunn Coal Mining Company, while engaged in removing a pillar in its mine.
The Gunn Coal Mining Company operated a mine in Bell county, Ky. It was eligible to operate, but was not operating, under the Workmen's Compensation Act, section 4880 et seq., Ky Sts. Helton, at the time of his injury, was not protected by it.
The basis of Helton's action is the negligence of the company. In his petition, as amended, he sets forth the specific acts of negligence which he alleges as the basis of his recovery.
The Gunn Coal Mining Company, having elected not to operate, and not operating, under the Workmen's Compensation Act, the provisions of section 4960 preclude it from relying on contributory negligence, assumed risk on the part of Helton and the negligence of a fellow servant. High Splint Coal Co. v. Baker, 247 Ky. 426, 57 S.W.2d 60, and cases cited. Though it was, and is, precluded from relying on these defenses, the burden was on Helton to allege and prove at least a prima facie case of negligence to entitle him to have the issues submitted to the jury. The allegations of his original and amended petition in this respect are: The company "with gross negligence and carelessness failed and refused to exercise ordinary care to furnish him a reasonably safe place to work, or reasonably sufficient mine props, timbers, caps, tools, tracks, cars and equipment, or reasonably safe help or assistance to perform his work"; he "was ordered to work and clean up slate and rock under a dangerous overhanging of rock and slate in the mine and slate sticking out from the side of the mine at the place in which he was working"; "the mine was taking weight and dangerous; slate and rock were falling from the top and also slate and rock falling on the side roll"; and "it was negligent in placing him in this unsafe place to work and ordering him to perform such duties thereto or securely prop same, and in assuring the plaintiff that said places to work were safe"; it "knew all of the said conditions and said negligence, or could have known of same by ordinary care; that the defendant did not know of same, and could not have known of same, by ordinary care." It is distinctly alleged that he was ordered by the company to work where he was injured.
These allegations were traversed, followed by a plea of contributory negligence. However, the allegations of the petition setting forth the nonacceptance by the coal company of the Workmen's Compensation Act are not denied in its answer.
At the conclusion of the evidence of both parties, the court directed a verdict for the Gunn Coal Mining Company. Of this action of the court, Helton is here complaining, insisting the evidence authorized the submission of the case to the jury. The coal company insists contrarywise.
The evidence discloses Helton was thirty-three years old at the time he sustained the injury for which he sues. His injury was a broken back from which he suffered physical and mental pain, destroying totally and permanently his power to earn money.
Helton and Robert Margraves were companions in their labor in the mine. Helton had engaged in "room work" in and around mines for ten years next before commencement of the work in the mine in which he was injured. For about twelve and a half days next before he was injured, he and Margraves worked in the same entry where the accident happened, about 150 feet from the point at which he was injured. A large piece of slate fell near where they were working; thereupon, they went to the mine foreman and informed him of the condition of that place, when he stated to them; "Alright, I will put you in a safe place where you can work"; he went with them to the pillar at which they were working at the time he sustained his injury and there said to them: "Here is a place, do the best you can with it." "Go ahead and push this stump up, that is the way I want it worked." Helton testified the foreman "said it was a safe place"; "he showed us where to begin." At that time and place slate had fallen from the roof of the mine onto the floor. Helton and Margraves cleaned up the slate overhead and on the floor. In doing so, they removed the slate off of the top of the coal "further back in the mountain," so that at the time Helton was injured the slate was "about straight up and down with the coal." They loaded two cars with coal that had been "already dug." At the time they began their labor at the pillar at which they were at work as directed by the foreman, the bottom of the mine "was heaved" in "several places"; this was caused by the weight of the overlying mountain. The mine had "a soft bottom and a hard top." This caused "the heaving of the bottom and the falling of the top." When the noon hour arrived, Helton and Margraves retired from their place of work to eat their lunch; on finishing it, they returned to their place of work to resume their labor. Just as Margrave was in the act of "picking up his pick," Helton sat down close against the fact of the pillar, preparing to begin digging coal, and at that moment a large quantity of slate, to use Margraves' expression, "jumped out" or rolled from above the coal onto Helton, causing his injury and knocking down Margraves. Neither Helton nor Margraves were doing anything at that time "to pull it down on him." The slate which injured Helton came "from the side" above the coal, and not from immediately over Helton, or above the space from which they had removed the slate in the forenoon and loaded the cars of coal. At the time the foreman placed them at the pillar to begin work, he directed them to remove the slate which they removed, with the information "they would be paid extra" for removing it. At the time they returned to the place of their work, on finishing their lunch, Margraves with a pick sounded the slate immediately over the space where they intended to begin their work. It sounded solid. Before doing so, he remarked to Helton "they had better see if they could get any more of the slate down." Helton responded he thought "there was no danger in it." In sounding the overhead slate, he did so at about the middle. The coal in the pillar was about 3 1/2 feet thick; the slate over it was about 2 or 2 1/2 feet. They had taken neither slate nor coal from under that which came from above the coal and fell upon Helton. Experienced miners testified that the rolling of the slate from out of its place, which fell upon Helton, was caused by "squeezing"; that is, the settling of the overlying mountain; and that this and the presence of the "heaves" along the side of the mine from which coal had been removed indicated "squeezing."
The facts as stated in this résumé are not controverted.
The coal company argues "the accident occurred on an entry, but it was not the duty of the master in this case to provide a safe place for a servant"; "there was no assurance of safety"; the "work was not directed to be done by an improper method"; "nor mined in a haphazarded or improper method to cause weight." Helton "was engaged in making a dangerous place safe and in changing conditions as the work progressed."
Helton argues "if there was any negligence shown on the part of the coal company, and if this negligence was causally connected with the injury" of Helton, "the case was made out for the jury"; and "where there is an assurance of safety on the part of the master to the servant, the servant has a right to work in obedience to this assurance under the directions of the master, and if an accident occurs and he is injured, the master is liable, unless the danger is so obvious that a reasonably prudent person would not undertake it." "In obeying the directions and commands of the foreman, Helton had the right to rely upon his superior judgment and assume the latter would not subject him to unnecessary peril"; that "the directions of the foreman to Helton to work in an unsafe place, is a violation of section 2726-4, Kentucky Statutes."
Their contentions comprehend their respective theory of the developed facts as well as that of the applicable and controlling law of the case. They agree in their briefs that
It must be noted that Helton and his colaborer were assigned to a double task; one to clean up the...
To continue reading
Request your trial