Heron v. Girdley
| Decision Date | 11 March 1955 |
| Parties | , 198 Tenn. 110 O. A. HERON, J. D. McDonough and Bituminous Casualty Corp. v. Estelle Johnson GIRDLEY. |
| Court | Tennessee Supreme Court |
A. A. Kelly, South Pittsburg, for plaintiffs in error.
Wm. J. Turnblazer, Middlesboro, Ky., for defendants in error.
William Girdley was employed by the defendants, O. A. Heron and J. D. McDonough, who were d/b/a Heron & McDonough Coal Company in December, 1952. Bituminous Casualty Corporation was its compensation carrier. On May 4, 1953, William Girdley reported for work at the usual time, and approximately an hour and a half later was found dead in the room of the mine where he regularly worked under circumstances hereinafter more fully set out.
On September 23, 1953, his widow filed her petition in the Chancery Court for Sequatchie County seeking compensation and alleging that she and three children, the eldest of whom was fifteen years of age, survived. The defendants answered this petition on March 17, 1954, denying all material allegations, but the only contested issue at the time of the trial and the only issue herein is, whether or not the deceased met his death by an accident arising out of and in the course of his employment as is necessary under Code, § 6852(d). This section of the Code reads as follows:
"Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of employment, and shall not include, disease in any form except as it shall naturally result from the injury.'
The case was heard by the Chancellor on oral evidence on April 19, 1954. He found that while working within the course of, and within the scope of his employment the deceased received a fatal injury to his heart as alleged in the petition and awarded compensation as prayed.
The defendant thereupon made a motion for a new trial and upon its being overruled, prayed, was granted and perfected an appeal to this Court.
The only question here presented for adjudication is whether or not the deceased died from an accident arising out of his employment. The plaintiff in error makes two assignments. The substance of the first assignment of error is that there is no material evidence of probative value to support the Chancellor's findings, and that there is no competent evidence to remove the case made by petitioner beyond the field of speculation and conjecture. The gist of the second assignment of error is, that the Court failed to reconcile and weigh the evidence and judicially determine the weight thereof and the burden of proof of the respective parties. In replying to these assignments, defendant in error insists that there is material evidence of probative value sufficient to shift the burden of proof to the defendant, and that the determination of the preponderance of the evidence was final in the trial Court.
The defendant operated a coal mine and the deceased, William Girdley was employed as a miner by it. The mine consisted of an entry which was apparently a long tunnel into the face of the mountain more than three thousand feet in length. Off of this tunnel were driven rooms. In each of these rooms a single miner worked. The coal was blasted loose from the face or walls of these rooms late on each afternoon, and the next day the miners loaded this coal into cars which were then transported to the entrance of the mine. There was a track laid from the entrance of the mine the entire length of the mine entry. The coal cars, both loaded and empty, on this track were pulled by mules. The defendant J. D. McDonough drove the mules and pulled the trains of cars both loaded and empty.
Off of this main entry leading into the rooms where the individual miners worked, were also tracks, but the mules did not pull the cars on the tracks leading from the main entry track to the walls or face of the rooms where the coal was loaded into the empty cars
On the morning of May 4, 1953, William Girdley went to work at the usual time. He rode some two thousand feet to the entrance of the room in which he worked, loaded two cars which were picked up by the mule train operated by the defendant, McDonough, who at the same time left two empty cars. It was the custom for these empty cars to be pushed by the miner over the track in his room to the place in the room where they were loaded. He took the two loaded cars to the main entrance and returned. The defendants, McDonough and Heron were the two persons who first saw the body of the deceased after the accident and the circumstances are best related in their own evidence, portions of which are as follows:
J. D. McDonough testified:
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Continuing on cross-examination McDonough said:
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On redirect examination McDonough said:
The Court also questioned this witness and under the questioning of the Court he testified as follows:
'The Court: And he had worked off from 200 and odd feet from the entry?
'The Witness: Yes, sir.
'The Court: That is, his coal was faced up some 225 feet from the entry?
'The Witness: Yes, sir.
'The Court: How far back in there did you find him on the tracks dead?
'The Court: Off of the entry or from the face of the coal?
'The Witness: Off of the entry.
'The Court: And his car was between him and the face of the coal?
'The Witness: One of them was sitting--say I found him right here, one of them he had been pushing, I presume.
'The Court: From the position he was lying on the tracks, was his head, in other words, facing toward the face of the coal or the direction his car was going in or the opposite way?
'The Witness: This is the track here and he was laying this way, in other words, I'd say at a 45-degree angle.
'The Court: All right.'
The defendant, O. A. Heron was also questioned by the Court and testified in regard to the track in the deceased Girdley's room as follows 'The Court: This room where this man was working, how is the floor of that room or what I'd call terrain outside, in other words, is it uphill, downhill, level, or what sort of condition do you find in there where the track is laid and where he would be pushing his mining cars up to the face of the coal?
'The Court: What I'm trying to...
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