Interstate Coal Co. v. Trivett

• Decision Date: 18 November 1913
• Citation: 155 Ky. 825,160 S.W. 728
• Parties: INTERSTATE COAL CO. v. TRIVETT. [1]
• Court: Kentucky Court of Appeals

160 S.W. 728

155 Ky. 825

INTERSTATE COAL CO. v. TRIVETT. ^[1]

Court of Appeals of Kentucky.

November 18, 1913

Appeal from Circuit Court, Knox County.

Action by C. M. Trivett against the Interstate Coal Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Black Black & Owens, of Barbourville, for appellant.

J. D Tuggle and J. M. Robsion, both of Barbourville, for appellee.

CLAY C.

Plaintiff C. M. Trivett, while at work in the mines of the defendant, Interstate Coal Company, was struck by a piece of falling slate and severely injured. In this action for damages he recovered a verdict and judgment of $1,750. The coal company appeals.

The defendant owns and operates a coal mine at Trosper, in Knox county, Ky. On September 18, 1910, plaintiff arrived from his home at Dante, Va., at defendant's mines, and sought employment. Not caring to dig or load coal, he asked for "company work," or work by the day. Not being able to furnish him this character of employment, the mine foreman, Williams, took him into the mine and showed him rooms 31 and 33, and offered him a job of cutting and loading coal until the mine could furnish him the kind of work he desired. The two rooms were not in a condition to begin work in at the time, as the slate had fallen, so the foreman offered to pay plaintiff and a friend who had accompanied him to clean up the rooms so that they could be worked. Not caring to do this, plaintiff and his friend went out to the commissary, where they met a man by the name of Hill, who had a contract with the company to load the coal in rooms 31 and 33 at a stipulated price per ton. Hill wanted somebody to work for him, so plaintiff and his friend saw Williams, the foreman, and asked him if he had any objection to their working for Hill until they could get company work. Williams said he had no objection. Plaintiff and his friend went to work for Hill on Wednesday night and loaded several cars. When they went to work the rooms had been properly cleaned up. After working there Wednesday night, plaintiff decided that he would not load coal any more. On Monday plaintiff went to the drum house. There he saw the foreman, Williams, and asked if he had a job ready for him. Williams told him that he did not, but that he could go and load coal for Mr. Hill that day, and maybe he would have a job for him the next day. Plaintiff asked him if he had any timbers in the place. Williams said he did not. Plaintiff told him that they had to have timbers. Williams said: "That is all right; go ahead, and I will send you timbers in there to-day." This conversation took place at the incline, about 100 yards from the drift mouth. Williams said he thought it would be safe to go ahead. When plaintiff went in he did not expect to dig coal. On going in they loaded the coal in room 33. While loading the car Hill went in room 31. After dinner they went back to room 31, and some time in the evening cleaned it up and loaded one more car. They had the car about loaded. There was a loose piece of coal about two cuts, or eight or ten feet, from the face. Plaintiff told Hill he would pick off the lump of coal and put it in the car, and Hill said he would go and get a bar and straighten a piece of track that was broken. Plaintiff picked up his pick and sounded the roof and put his hand against the top for the purpose of seeing whether it was solid or drummy. The draw slate was sandstone and seemed solid. Plaintiff looked all around it and under it, but could find no cracks. His examination revealed nothing wrong with it. He then stepped under the slate a little piece from the crack. He was then eight or ten feet from the face. He hit one lick with the pick into the lump of coal. He then drew back and struck another lick, when a large piece of slate fell on him, severely injuring him. When he examined the slate he used the pick. Mr. Williams said to him that these rooms were in a safe condition. Plaintiff had never had any previous experience in the mine. He had run an electric motor in the mines of West Virginia. At the time of his injury he was not 21 years of age. Mr. Williams did not send any props to either room. If props had been sent he could and would have propped the slate. At the time of the injury he was working in a narrow neck in that room, eight or ten feet wide. Back from him the room was considerably wider. The room could have been propped on each side, within eight feet of the face, and a prop could have been set in the middle. One prop would have been sufficient to hold the slate that fell on him. On cross-examination witness stated the slate had been falling out some seven or eight feet back. Plaintiff saw that it had been taken up to that place, and saw the slate there. He worked on it nearly all of the day Monday, knowing that this was the case. He did this because he was working by the day and did not know the slate was going to fall. When he first went to rooms 31 and 33 with Mr. Williams he saw the roof was falling in these rooms. At that time it had already fallen.

According to the evidence for the defendant, room 31 had been driven in about 150 feet from the fourth right entry. The width of this room across the face of the coal was about 25 feet. The permanent roof--that is, the roof after the draw slate has been taken down--is called the "bad top." They were driving on a narrow neck about eight feet wide. At the time of plaintiff's injury this work had progressed about 18 feet. It was in this neck, and near the face of the coal he was mining, that plaintiff was injured by the falling draw slate. The roof in the narrow neck was all right. Several witnesses testified that it was not only not customary, but was not practicable, to prop the draw slate where plaintiff was at work. The draw slate is a layer of slate between the roof of the mine and the coal. It is a shelly, disintegrating substance, which often falls when the coal is shot down, and is always in danger of falling when the coal is taken out and it is permitted to remain. It is the universal mining custom to take it down. The air slacks it easily and quickly. It cannot be securely propped. It is the coal digger's duty to take down draw slate. This was a part of Hill's contract. Witness Williams did not have any positive recollection as to whether he said anything to plaintiff about furnishing props or not.

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