Kentucky Utilities Co. v. White Star Coal Co.
| Decision Date | 24 June 1932 |
| Citation | 52 S.W.2d 705,244 Ky. 759 |
| Parties | KENTUCKY UTILITIES CO. v. WHITE STAR COAL CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bell County.
Action by the White Star Coal Company against the Kentucky Utilities Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Gordon Laurent & Ogden, of Louisville, and N. R. Patterson, of Pineville, for appellant.
Frank M. Drake, of Louisville, and Cleon K. Calvert, and J. G Bruce, both of Pineville, for appellee.
The White Star Coal Company brought this action against the Kentucky Utilities Company to recover damages for two fires the first of which destroyed its rotary house, and the second destroyed its tipple and power house. The second fire occurred two days after the first. The issues were made up. Proof was heard, and the jury returned a verdict in favor of the defendant as to the second fire and in favor of the plaintiff for the first fire in the sum of $6,000, on which the court entered judgment. The defendant appeals.
The first question presented is, Was the evidence offered by the plaintiff sufficient to take the case to the jury as to the first fire? The facts are these:
The White Star Coal Company operates a coal mine in Harlan county near the railroad station Whilhoit, about seven miles south of Harlan. The Kentucky Utilities Company furnished electricity for the operation of the mine. It maintained, at the railroad station, three transformers; a high-tension line of 33,000 volts, consisting of three wires, entered the substation. This was reduced by the transformers to 2,300 volts, at which latter voltage the current was delivered to the coal company. Before the 33,000-volt line reached the transformers, there is what is known as the air brake switch. This when open would disconnect all electric current from the transformers. Between the switch and the transformers there was a fuse in each of the three wires, which would melt and disconnect the service in case of an overload of current. From the transformers wires went to the rotary house of the coal company about two miles away. The proof for the plaintiff showed that for some months there had been trouble with the transformer next to the railroad track. The fuse would blow out; it would be put back; then it would blow out again. Sometimes this would happen in a few hours; at other times after some days; but it was always with the same transformer. Wires ran from each of the transformers to the coal mine, giving what is known as the three-phase service. When the fuse on the transformer next to the railroad would blow out, there would be trouble in the mine for lack of proper service. The first fire occurred on the night of November 20. The proof for the plaintiff showed that the mine had operated all day without any trouble with the service, and everything was going on all right up to the time that the nightman left the rotary house between 11 and 12 o'clock. He took nine or ten men with him on a car, went down the hill, and after they got off brought the car back to the head of the mine, left it there, cut off the current, and went in the mine. He noticed no trouble up to this time. The rotary house stood on top of the hill, something over half a mile away from the head of the mine. It contained a rotary converter, three transformers, a switchboard, and other devices used in connection therewith. The current of 2,300 volts was reduced at the rotary house to 230 volts, which was passed into the mine. The night watchman left the converter and transformers operating as usual when he left the rotary house, went down the hill with the men on the car. The first that was known of the fire was between 4 and 5 o'clock in the morning, when the night watchman went back to the rotary house and found that it had burned down. The next morning the fuse at the transformer, which had been giving trouble, was found to be blown out. When the ruins left by the fire were examined, the rotary converter and transformers were found to be a melted mass of metal. The plaintiff's proof showed that there was nothing in the rotary house to cause a fire, except the oil in the air-tight transformers, and this would not burn in them; that the house was built of 2X4 scantling, 2 feet apart, to which iron sheeting was nailed. It was 16 feet square. The floor was of dirt, and the machinery sat on a concrete base. After the night watchman cut off the car that he used, there was no load on the electric current or, as he expressed it, "It was running idle." The plaintiff introduced one witness who said that the blowing out of the fuse would affect the machinery at the rotary house and would heat it if it was pulling a load. He also said that if it was not pulling a load it would cause it to heat if this went on long. Another witness testified that he had known the machinery to run for four hours in that condition.
The defendant earnestly asks a reversal on these grounds: (1) On the evidence that the court should have peremptorily instructed the jury to find for the defendant. (2) The court erred in the admission of evidence. (3) The verdict is against the evidence.
1. The rule is well settled that, if there is any competent and relevant evidence warranting a recovery, a peremptory instruction should not be given. It is also the well-settled rule in cases of fires that the facts may be proved by circumstantial evidence, and that the case is for the jury where the facts reasonably warrant the conclusion asserted by the plaintiff. Here it was shown that the transformer next to the railroad had been giving trouble for months; that it was the same transformer all the time, while the two other transformers along side of it gave no trouble; that the defendant worked on the transformer and temporarily restored the service, but in a short time it would blow out again. This had been going on so long and had occurred so often that it may reasonably be inferred that there was some trouble with this transformer, when it was shown that everything else was working all right and continued to work all right after the trouble with the transformer at each instance was removed. After each trouble the fuse on this transformer would be found blown out. The fuse would be put back and the transformer repaired, and then everything went on all right until the transformer blew out again. There was clearly evidence of want of ordinary care in letting this go on for months without more examination of that transformer to see what was the matter or what caused this trouble. In addition to this there was proof that...
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