Interstate Coal Co. v. Molner

• Decision Date: 01 November 1912
• Citation: 150 S.W. 372,150 Ky. 321
• Parties: INTERSTATE COAL CO. v. MOLNER.
• Court: Kentucky Court of Appeals

150 S.W. 372

150 Ky. 321

INTERSTATE COAL CO. v. MOLNER.

Court of Appeals of Kentucky.

November 1, 1912

Appeal from Circuit Court, Knox County.

Action by Joe Molner against the Interstate Coal Company. From a judgment for plaintiff, defendant appeals. Reversed.

P. D Black and Black, Golden & Owens, all of Barbourville, for appellant.

J. M Robsion and Powers, Sampson & Smith, all of Barbourville, for appellee.

MILLER J.

The appellee, Joe Molner, age 35, and with six years' experience as a miner, was injured on April 16, 1909, by the fall of slate from the roof of appellant's mine in which Molner was then working as a "shooter." Molner was working under a contract, by which he received 60 cents a ton for the coal he "shot" down and loaded in cars; and in doing this work he employed four or five men to assist him. He had been working in this mine about five months before the accident occurred. There were three rooms or working places in which he was prosecuting his work. The coal would first be cut by the men who were operating the company's machines used for that purpose, and then "shot" down by Molner and his assistants, and loaded by them on the cars. From the main entry which led from the mouth of the mine a "haulway" led off to the three working places on the side where Molner and his men were engaged in removing the coal. This "haulway" was used by Molner and his men in going to their places of work, and was also the way through which the loaded cars were hauled, upon a railroad track, to the mouth of the mine. About 7 or 8 o'clock on the morning of the accident Molner and his men went to their work in one or more of the three working places above mentioned. The machine men were working in one of these places, while the "shooters" and loaders were in the others, loading and cleaning up the coal which had theretofore been "shot" down. Charles Trosper, the driver, who was an employé of the company, had taken out several loads through the "haulway" previous to the accident to appellee. Between 1 and 2 o'clock in the afternoon Molner, for some reason not disclosed by the evidence, desiring to see Trosper, the driver, who, at the time, was at the mouth or outside of the mine, left the place where he was working and started in search of the driver, going down the "haulway" towards the mouth of the mine. When he had gone perhaps half of the distance, he found a quantity of slate had fallen from the roof onto the car track below. When Molner discovered the fallen slate on the track, he passed it, with the intention of meeting and stopping the returning driver. He met Trosper a short distance beyond the slate, and had him stop his mule and car and wait until the slate could be removed. Molner then went back to his working place and returned, bringing with him two miners, Jake Smith and George Hembree, to assist him in removing the slate. Pursuant to Molner's direction, one of the men brought a large hammer for the purpose of breaking the slate and the other brought a shovel with which to remove it. They proceeded to break the slate and remove it from the track, Smith using the hammer, Hembree the shovel, and Molner working with his hands. The "haulway" was about 6 feet high and 18 feet wide. Smith was using the hammer in breaking the slate; and, raising the hammer too high, he struck the roof above from which the slate had fallen. Smith remarked that the roof sounded "drummy" and loose; and said to Molner and Hembree that the roof was dangerous and likely to fall. Trosper, the driver, who was waiting near-by, heard the hammer as it struck the roof, and also heard Smith's warning. According to the testimony of Hembree and Smith, Molner struck the roof above with his hand, and said, "Maybe all fall to-night." Molner was an experienced miner, and his remark was evidently taken by his companions to mean that there was a probability of the slate falling later, but that there was no immediate danger. Smith, Hembree, and Molner then proceeded with the work of removing the slate; but Smith, who still had his fears as to the safety of the place, again looked up, and, as he did so, he saw the slate begin to tear loose and fall. He immediately called to Molner and Hembree to look out, that the slate was falling, and as he ran by Hembree a large quantity of the slate fell, catching and injuring both Molner and Hembree. Molner's right leg was broken in two places, resulting in it becoming two inches shorter than his left leg. He was confined to his bed for more than two months, and had to use crutches three months thereafter. He was severely and permanently injured. Molner denied that he examined the roof or struck it with his hand, or that he made the remark that it might all fall by night, but in this he is contradicted by both Hembree and Smith. Upon a trial he obtained a judgment for $9,000; and the company prosecutes this appeal. The defense consists of a traverse of the charge of negligence, and a plea of contributory negligence upon Molner's part.

Many grounds are assigned for a reversal; but, according to our view of the case, it is only necessary to review one of them, and that is whether the court should have sustained appellant's motion for a peremptory instruction for the jury to find for the defendant.

The reciprocal duties of the mineowner and the miner are stated in Ashland Coal & Iron Railway Co. v. Wallace, 101 Ky. 637, 42 S.W. 746, 19 Ky. Law Rep. 849, to be as follows: "It is the duty of the mineowner to exercise ordinary care to provide a reasonably safe place in which his employé may perform his work, and he must use diligence to keep this place in a reasonably safe condition so that the servant may not be exposed to unnecessary risk; and this diligence must be commensurate with the character of the service required and with the dangers that a reasonably prudent man would apprehend under (the) circumstances of each particular case. A greater degree of care is required of the master who places his servant at work in a coal mine, beneath overhanging masses of rock which are liable to fall at any moment, than one who places his servant where such danger it not to be apprehended. A prudent man would exercise greater care and watchfulness in the former than in the latter case; and the greater the danger a prudent man would apprehend the higher the degree of care and diligence are required of the master in the protection of the servant. For a failure to exercise this care, resulting in an injury to the servant the master is liable, and this duty and liability extend not only to the unreasonable and unnecessary risks that are known to the master, but also to such as a reasonably prudent man in the exercise of ordinary diligence--diligence proportionate to the risk--would have known or discovered. Cook v. Railway Co., 34 Minn. 45, 24 N.W. 311; Noyes v. Smith, 28 Vt. 59 ; Gibson v. Railroad Co., 46 Mo. 163 ; Jones v. L. & N. R. R. Co., 95 Ky. 576 [26 S.W. 590, 16 Ky. Law Rep. 132]; Flahiff v. L. & N. R. R. Co., 9 Ky. Law Rep. 398; Lawrence v. Hagemeyer, 93 Ky. 591 [20 S.W. 704, 14 Ky. Law Rep. 566]; Union Pacific R. R. Co. v. Jarvi, 53 F. 65 . And whilst the employer cannot be held bound as an insurer of the safety of the place in which he puts his servant, he is, in every case, bound to exercise that care and diligence proportionate to the occupation which a reasonably prudent man would use under like circumstances, both to provide and keep in a reasonably safe condition the place of work; and this duty is personal to the master, and cannot be so delegated as to relieve him of liability. Railway Co. v. Herbert, 116 U.S. 642, 648 and 652, 6 S.Ct. 590, 29 L.Ed. 755. On the other hand, it is the duty of the servant to exercise that degree of care which is commensurate with the character of his occupation, which a reasonably prudent person would use under like circumstances, in order to protect himself from injury; and, if he fails to exercise this care, he cannot recover of the master for an injury to which his own negligence has contributed, even though the master has failed to exercise due care on his part. He cannot recklessly expose himself to a known danger and to a danger which an ordinarily prudent and intelligent man would in his situation have apprehended, and then recover of the master for an injury which his own carelessness has caused. Cunningham v. Railway Co. [C. C.]

17 F. 882, 886; De Lozier v. Ky. Lumber Co. , 13 Ky. Law Rep. 818; L. & N. R. R. Co. v. Shivell , 13 Ky. Law Rep. 902; Doyle v. Swift's Iron & Steel Works, 5 Ky. Law Rep. 59; Bunt v. Mining Co., 138 U.S. 483, 485 [11 S.Ct. 464, 34 L.Ed. 1031]; R. R. Co. v. Jones, 95 U.S. 439, 443 ; Kane v. Ry. Co., 128 U.S. 91, 94 [9 S.Ct. 16, 32 L.Ed. 339]."

Applying these rules to the undisputed facts, and by that we mean the physical facts and Molner's testimony relating to them what do we find? Molner is an Hungarian, and had been living in the United States some nine years. He was an experienced and high salaried miner, earning from $150 to $250 per month. He speaks English with great difficulty, and gave the larger portion of his testimony through an interpreter. When asked whose duty it was to remove slate that had fallen upon the track, he said it was his duty when the amount was small, and the company's duty...