Interstate Coal Co. v. Love

• Decision Date: 22 April 1913
• Citation: 153 Ky. 323,155 S.W. 746
• Parties: INTERSTATE COAL CO. v. LOVE.
• Court: Kentucky Court of Appeals

155 S.W. 746

153 Ky. 323

INTERSTATE COAL CO. v. LOVE.

Court of Appeals of Kentucky.

April 22, 1913

Appeal from Circuit Court, Knox County.

Action by Chester Love against the Interstate Coal Company. Judgment for plaintiff, and defendant appeals. Reversed.

Black Black & Owens, of Barbourville, for appellant.

Sawyer A. Smith, of Barbourville, for appellee.

TURNER J.

Appellant operates a coal mine in Knox county, and appellee, an infant then 17 years of age, employed by it was in September, 1911 injured, and instituted this action for damages, alleging that his injury was caused by the negligence of appellant. Appellee had at the time of the injury for some months been employed in certain minor capacities in the mine; and upon a few occasions while so employed he had in the absence of the regular motorman operated one of appellant's electric motor cars which it used in the operation of its mines. On the day of the accident the regular motorman of motor car No 3, either having refused to further operate that car, or for some other reason not being in charge of it, the mine foreman directed appellee to take charge of it, run it through the mountain to the other side where appellant maintained a shop for the repair of its motors and cars, and there to have it examined, and if anything was wrong with it to have it repaired, and then bring it back and go to work. Following these instructions, appellee took the car through the mountain to the repair shops, and there the same was, as he says, examined, and he was told by the electrician in charge that there was nothing the matter with it, and to take it on back and go to work. He started back through the mountain operating the motor, two other workmen going with him; when they had gone some 400 or 500 yards, and while in the mine and running at a reasonable rate, there was a flash of fire at or near the motor, and near his feet, and a blaze emitted therefrom about three feet high, which burned his clothes and legs. He attempted, as he says, to shut off the power with the controller, but was unable to do so, and he then undertook to reach up and pull down the poll connected with the overhead wire and shut off the power in that way, but was unable to do that; in reaching up for the poll he knocked off his cap, and the light from his miner's lamp was pet out. He then undertook to jump out of the car, and in doing so his foot was caught between the rail and the wheel of the motor car and run over, and his heel cut off, and badly mashed and crushed. On the trial he was awarded a verdict of $1,250 in damages, and the company appeals.

Some two or three months after the accident one of appellant's agents went to the home of appellee's father, and there entered into a written contract which was signed by the father, mother, and the infant appellee, by the terms of which the company in consideration of $75 that day paid to the father released appellant from all further liability by reason of the injury.

The uncontradicted testimony showed that appellee was only 17 years of age at the time he signed this writing, and that the whole consideration paid was to the father, and the court therefore properly directed the jury upon the trial that the infant was not bound by the contract, and not to consider the evidence which had been submitted on that question.

It is urged, however, by appellant that it should at least have been entitled to a credit on the judgment for the amount of this payment; but it is sufficient to say that there was no pleading justifying this, and not even an instruction offered on that subject. And, besides, the father to whom the payment was made had a right of action against appellant for the loss of his infant son's services, and, the money having been paid to him, this payment could only be properly pleaded in an action by him.

In his original petition appellee sets up the negligence upon which he relies for a recovery, as (1) that, he being an infant and without experience in the use and operation of electric motor cars, it was the duty of the defendant's agents superior in authority to him to give him instructions relative to the use and operation thereof, and warn him of the danger incident to its operation, and that they failed to do either of these things; and (2) that the wires and devices attached thereto for the purpose of transmitting the electric power necessary to its operation were worn by long usage, and were out of repair, and not in proper condition for operation, and therefore it was dangerous to operate the car in that condition, and these facts were known to the company, or should have been, and were unknown to the plaintiff; and that it was negligence for the mine foreman knowing this condition of the car to direct him, an infant, not knowing its condition, to operate it.

In an amended petition appellee alleges that "plaintiff hereby reiterates and adopts all the statements in the original petition necessary to make this amendment complete, and...