Huddleston's Admr. v. Straight Creek Coal & Coke Co.

• Decision Date: 01 June 1910
• Court: Kentucky Court of Appeals
• Parties: Huddleston's Admr v. Straight Creek Coal & Coke Co.

Page 506

138 Ky. 506

Huddleston's Admr v. Straight Creek Coal & Coke Co.

Court of Appeals of Kentucky.

June 1, 1910.

Appeal from Bell Circuit Court.

W. T. DAVIS, Circuit Judge.

Judgment for defendant, plaintiff appeals. — Reversed.

B. B. GOLDEN for appellant.

ROBT. E. WOODS and JAMES C. POSTON for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

This is an action to recover damages for the death of Millard Huddleston, who was killed in the mine of the appellee company. He was employed in driving a mule that pulled the cars on a track on which the coal was taken out of the mine, but, when not engaged in that capacity, it was his duty to perform such other work about the mine as he was directed to do. His death was caused by the falling of slate from the roof and side of the cross-entry near the neck of room No. 46 in the mine. Upon the conclusion of the evidence for both parties, the court instructed the jury to return a verdict in favor of the company. It is the judgment on this verdict that is now complained of, and a reversal is asked upon the ground that the court erred in taking the case from the jury.

A motion was made to strike the bill of evidence and exceptions from the record upon the ground that the record did not show that a motion for a new trial was made, or that the bill of exceptions was filed by an order of court. The original record was defective in these respects, but a supplemental record has been filed curing these errors, and showing that a motion for a new trial was made upon grounds filed, and that the bill of exceptions was filed in due time and according to the regular procedure, and so we need not further concern ourselves about this preliminary question of practice.

The testimony shows that one Simpson was the "boss driver," and that it was his duty to inspect the entries for the purpose of discovering any defective places in the roof or sides that might endanger the lives of the miners, and that he had under him a man named Elswick, whose duty it was to take down the loose slate and rock at such places as he was directed by Simpson to go. It is further shown that, although it was not the duty of Huddleston to inspect the entries or rooms, yet he was instructed to report to Simpson any dangerous places that he discovered so that they might be repaired. Some days before Huddleston was killed, the attention of both Simpson and Elswick was called by Huddleston and other miners to the dangerous condition of the entry at and in the immediate neighborhood of the place where the slate fell on Huddleston, and, after receiving this information, Simpson directed Elswick to go to the place and remove any slate or rock that was likely to fall. In pursuance of this direction, Elswick on Thursday afternoon about 3 o'clock went to the entry, and with the assistance of Huddleston, who happened to be there, he inspected the roof of the entry at the place the slate fell, as well as other places in that part of the entry. Elswick testifies that with the aid of Huddleston there was removed all the rock and slate that appeared from an inspection to need attention. In other words, his evidence was to the effect that he exercised ordinary care to, and did, put the entry at the place Huddleston was killed in a reasonably safe condition. Passing the testimony of A. Diamond, offered to be introduced in behalf of the plaintiff below, and which, although clearly competent in rebuttal, was rejected by the court, there is no evidence to contradict that of Elswick. Putting the case upon the testimony of Elswick, the argument is made in behalf of the company that as the uncontradicted evidence shows that the company through its employes, Simpson and Elswick, exercised ordinary care to put the mine at the place Huddleston was killed in reasonably safe condition, and as there was no known cause that interfered with or changed that condition between the time it was thus inspected and put in reasonably safe condition and the time when Huddleston was killed early the next morning, the court properly directed a verdict in its favor. But, notwithstanding the inspection and the removal of the loose slate on Thursday afternoon, the fact remains that early the next morning slate did fall from the place inspected, and so the question comes up: Must the statements of Elswick be accepted as conclusive of the fact that the company fully discharged its duty to keep the mine in a reasonably safe condition, or was the question whether or not it performed this duty one for the jury to determine from all the facts and circumstances in the case? It can readily be seen that this is a most important question, not only as it affects the case before us, but as it will affect other similar cases in which a recovery is sought against the master for the destruction of the life of the servant based on the failure of the master to furnish the servant reasonably safe places or appliances. If the principle contended for by counsel for the company is the correct law, then in every case involving a question like this the master will be absolved from liability if he can prove that the place or appliance was examined and inspected shortly before the injury and found to be reasonably safe for the use of the servant, and there is no evidence to disprove that the inspection was made, or to contradict the evidence of those who say that in making it they exercised ordinary care. If this is the law, then, when a servant is...