Kenmont Coal Co. v. Patton

• Decision Date: 10 November 1920
• Docket Number: 3381.
• Citation: 268 F. 334
• Parties: KENMONT COAL CO. v. PATTON.
• Court: U.S. Court of Appeals — Sixth Circuit

268 F. 334

KENMONT COAL CO. v. PATTON.

No. 3381.

United States Court of Appeals, Sixth Circuit.

November 10, 1920

B. R Jouett, of Winchester, Ky. (Miller & Craft, of Hazard, Ky on the brief), for plaintiff in error.

Bailey P. Wootton, of Hazard, Ky. (R. C. Musick, of Jackson, Ky and Wootton, Reeves & Wooton, of Hazard, Ky., on the brief) for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

Defendant in error, as plaintiff, recovered verdict and judgment against plaintiff in error for damages on account of the death of decedent, caused by the falling of a large block of slate from the roof of defendant's Kentucky coal mine, in which decedent was employed. The substantial questions presented relate, first, to the trial court's refusal to direct verdict for defendant, and, second, to its failure to give a certain request to charge.

1. There was no error in overruling the motion to direct verdict for defendant. It appeared that on the afternoon before the injury a miner named Logan, who was working in the so-called Logan entry, called the attention of the assistant mine foreman to the condition of the slate in the roof of that entry and of the 'breakthrough' between the Logan and another entry. Some slate had previously fallen, and a 'horseback' of slate in the roof of the breakthrough and 'feathering off' into the entry 'looked wrong.' Logan told the assistant foreman he would feel safer if the roof of both the breakthrough and the entry at the place in question were propped up. The assistant foreman, after inspecting the roof, promised to have it propped up right away. This was not done. Before work began the next morning a large block of slate fell from the roof in the lower part of the entry. The foreman directed Logan to break up the slate and remove it, and directed decedent, who was a trackman working in another part of the mine, to assist Logan in so doing. The rock, when broken up, was to be put in the breakthrough. While on this assignment, and when just outside the narrow entry, and inferably just within the 'breakthrough,' the 'horseback' fell upon and killed decedent. Defendant denies that it was negligent in not making the roof safe, and asserts that it was decedent's duty, and not that of defendant, to see that the breakthrough was safe before entering; also that decedent was guilty of contributory negligence in failing so to do, and likewise assumed the risk of falling slate. These defenses are largely based upon the proposition that the breakthrough was not decedent's 'place of work.'

Considering, however, the case in its aspect most favorable to plaintiff, as we must in reviewing a denial of a motion to peremptorily direct verdict for defendant, it cannot be said, as matter of law, that the portion of the breakthrough in which decedent was when the slate fell was not part of the working place provided for decedent. The entry was only a few feet wide. It extended longitudinally only about six feet below the lower limit of the breakthrough. The fallen rock lay on the entry floor, just below the lower line of the breakthrough and close upon its entrance. Decedent had attempted to break up the slate with a hammer, but said he could not break it. Logan said he believed he could, took the hammer out of decedent's hand, took the wedge, raised a 'powerful heavy hammer' to drive it, when the horseback fell and crushed decedent. It was fairly open to inference by the jury from the evidence and existing situation that decedent had reasonably and naturally, in the exercise of due care, stepped within the confines of the breakthrough but a short distance, perhaps only a couple of feet or so, to avoid being hit by flying pieces of slate, or possibly by Logan's hammer, or perhaps otherwise in the course of his duty. Defendant's duty with respect to furnishing decedent a safe place to work was not necessarily confined to the precise spot in which decedent was to work. Fluehart Co. v. Elam, 151 Ky. 47, 52, 151 S.W. 34.

In view of these possible inferences, defendant was not entitled to a directed verdict. Under the common law, as administered by both federal and state courts, defendant owed decedent the nondelegable duty of reasonable care to furnish him a reasonably safe place to work. Dasher v. Hocking Mining Co. (C.C.A. 6) 212 F. 628, 631, 129 C.C.A. 164, and cases cited. The evidence amply supported a conclusion of defendant's negligence. Defendant being so bound decedent could properly act on the presumption that the duty had been performed, unless he knew, or by the exercise of care...