Horse Creek Mining Co. v. Frazier's Adm'x

• Citation: 224 Ky. 211,5 S.W.2d 1064
• Parties: HORSE CREEK MINING CO. v. FRAZIER'S ADM'X.
• Decision Date: 27 April 1928
• Court: Court of Appeals of Kentucky

5 S.W.2d 1064

224 Ky. 211

HORSE CREEK MINING CO. v. FRAZIER'S ADM'X.

Court of Appeals of Kentucky

April 27, 1928

Appeal from Circuit Court, Clay County.

Action by Arch Frazier's administratrix against the Horse Creek Mining Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Hiram H. Owens, of Barbourville, for appellant.

Murray L. Brown, of Manchester, for appellee.

THOMAS J.

The appellant and defendant below, Horse Creek Mining Company, is a corporation, and at the time of the matters herein complained of it operated, on a small scale, a couple of coal mines in Clay county, both of which were located on the same tract of land, and a few hundred feet apart, and the coal from each was carried to, and handled by, one common tipple. On the 11th day of September, 1925, the decedent, Arch Frazier, an experienced and adult miner, was in the employ of defendant, and worked in one of the openings or separate mines of its entire operations, and he was defendant's foreman at that opening. Defendant determined to construct another track upon which to operate mining cars in that opening, over which undertaking the deceased was foreman, and the task of doing so was put exclusively under his management, superintendence, and control. On the late afternoon of the date above mentioned he, with two other employees under him, blasted the rib of the entry on one of its sides for the purpose of widening it to admit the construction of the second or double track, and that was done somewhere between 4 and 5 o'clock p. m. At the direction of the deceased he and the employees under him went into the entry after supper on the same evening for the purpose of removing the coal that had been blasted only a few hours before. They were all engaged in removing it when it was discovered that the end of the arched slate roof under which the blasting was done, and which everyone states was sound and safe before the blasting, was not only weakened by removing the coal from under it, and upon which it rested but that there was a crack in it, and that it was resting only on the shattered coal that the explosion had not thrown out. With that knowledge, the deceased went under the roof at the place indicated, and commenced to take out the shattered coal, which was the only support of that end of the roof after the explosion, and a piece of the slate roof fell upon and killed him. The above is, in substance, the undisputed proof as to how the deceased met his death.

Appellee and plaintiff below, as his widow qualified as his personal representative, and she afterwards brought this common-law action against defendant to recover damages for the death of her husband, which she alleged was produced and brought about and caused "by the gross carelessness and negligence of the defendant, its bosses, agents, and employees; that said dangerous condition (of the roof of the entry) and result was wholly and totally unknown to plaintiff's intestate but all of which was known, or could have been known, to the defendant, its agents. bosses (one of whom was deceased) and employees, by ordinary care, inspection, and prudence of the defendant, but all of which it grossly and carelessly neglected," etc., and she sought judgment for the sum of $30,000. An amended petition alleged that defendant had not accepted the provisions of our statute known as the Workmen's Compensation Act, but it did not aver that it employed the requisite number of employees to require it to do so. However, the answer and the reply did develop that fact, and it was conceded at the trial of the case.

The answer was a denial of any negligence on the part of defendant, and contained pleas of contributory negligence and assumption of risk; to each of which a demurrer filed by plaintiff was sustained on the ground that such defenses were not available in common-law actions against masters who were covered by the provisions of the Compensation Act, and who did not accept it. Another paragraph pleaded in substance that decedent was the foreman at the mine where he was killed and in the work then being performed, and, in substance, that he was defendant's vice principal at the time, and that he had sole charge of the work, with authority to direct the method by which it should be performed, and that in such capacity he produced the unsafe condition of the roof, and with knowledge thereof, and of his own volition, he went under it, and that therefore he sustained his death solely and only through his own negligence and because of none on the part of defendant.

Appropriate pleadings made the issues, and upon trial under instructions given by the court there was a verdict in favor of plaintiff for the sum of $2,500, which the court declined to set aside on defendant's motion for a new trial, and from the judgment pronounced thereon defendant prosecutes this appeal. The grounds relied on in the motion were: (1) Error of the court in overruling defendant's motion for a peremptory instruction in its favor; (2) that the verdict was flagrantly against the evidence; and (3) erroneous instructions, to the giving of which defendant objected and excepted.

Defendant had a general mine foreman who exercised a general superintendency over its entire mining operations by the name of Fortner, and deceased had been duly appointed, and for quite a while had been acting as, assistant foreman; but, while the chief foreman was licensed and had received a certificate to that effect, as is required by section 2723 of Carroll's 1922 edition of Kentucky Statutes, the deceased had not been so licensed. Defendant's duty as operator of the mines to employ a licensed mine foreman is prescribed by section 2726-1 of the same statute, and in the same section it is also provided for the employment of an assistant foreman under certain conditions, one of which is the extensiveness of the mining operations being such as to require it.

Upon the theory that defendant had failed to follow the provisions of that section, the case was practiced below for plaintiff and the instructions submitted to the jury were likewise bottomed upon the same theory, and that, too, without a scintilla of proof to show that the alleged violation of the statute (even if it had been indisputably proven) contributed in the remotest degree to the death of the deceased. There are many statutes imposing certain duties on the operators of mines, but, unless a failure to observe them had...