Mannington Fuel Co. v. Ray's Adm'x

• Decision Date: 17 October 1933
• Citation: 250 Ky. 736,63 S.W.2d 933
• Parties: MANNINGTON FUEL CO. v. RAY'S ADMINISTRATRIX.
• Court: Kentucky Court of Appeals

63 S.W.2d 933

250 Ky. 736

MANNINGTON FUEL CO. v. RAY'S ADMINISTRATRIX.

Court of Appeals of Kentucky

October 17, 1933

Appeal from Circuit Court, Christian County.

Action by Tom Ray's administratrix against the Mannington Fuel Company. From an adverse judgment, defendant appeals.

Reversed with directions.

Alvan H. Clark, Hunter Wood, and White & Clark, all of Hopkinsville, for appellant.

John Stites, of Hopkinsville, for appellee.

RICHARDSON Justice.

Tom Ray and Nolie Dickerson were employees of the Mannington Fuel Company, and worked together as "buddies" in the loading of coal in its mine. They had been off duty for about a week when they returned to the mine to work. Ray had been employed by the Mannington Fuel Company for about four years. John G. Thomas was superintendent of its mines. Ray and Dickerson reported on the morning of February 17, 1930, and Thomas directed them to a certain room in which to begin work. This room had been shot and the coal partially loaded. Seymour Winders was loading coal in it when Ray and Dickerson arrived, and on observing it had been partially loaded they declined to assist in cleaning it up. The loaders were paid for their labor by the ton, and on account of the coal being partially "loaded out" they would be unable to earn as much money in the same period of time. They went to another point in the mine, about 8 o'clock in the morning, "and laid down beside the track and slept or rested until noon time." In the interim, Thomas, the superintendent, was making an inspection tour. On entering the room where Ray was subsequently injured, he observed loose rock which he believed necessary to be removed from the roof of the mine. On this account he returned to the switch where Ray and Dickerson were, to get information to the "timber man" to remove the loose rock so the machinemen could enter the room in safety, and begin cutting the coal. The timber man, on receiving the information from Thomas, proceeded to the room and removed the loose rock. Immediately after the timber man had completed his work, the operators of the cutting machine went to the room, set the machine, and cut back six or eight feet in the wall of coal on a level with the mine floor. After they had finished cutting the coal and pulled out the machine, the coal broke down, or came from the roof. The "draw slate" over the top of the coal was thus loosened, and settled on the coal. After the machinemen left the room the shooters entered it for the purpose of blasting loose the draw slate from the roof. They drilled the necessary holes, laid the explosive and fired it, which caused the remaining draw slate to loosen from the roof and settle on the coal. After firing the shot the men engaged in it proceeded to the point where the men were accustomed to gather to eat their lunch.

Thomas and other employees were at the point where Ray and Dickerson were resting on the track at different times, and they claim they had certain conversations with them. Dickerson disputes certain of their statements, and claims that Thomas directed them to go to loading the coal where Ray sustained his injury. These conversations at the present time are not material, and will not be considered, except incidentally.

Ray and Dickerson went to the room where the coal had been cut, and the roof shot, and began to load coal, when a large slab of draw slate or rock fell and seriously injured Ray, which finally resulted in his death.

His mother qualified as administratrix of his estate and brought this action to recover damages for his death produced by the falling of the rock or slate upon him.

For her cause of action she avers that the Mannington Fuel Company was eligible to, but had not accepted, and was not working under, the Workmen's Compensation Act (Ky. St. § 4880 et seq.), and that Ray was its employee, and "while he was so engaged at his said work in the mine of the defendant, because of the gross negligence and carelessness of the defendant in failing to prop same up and sustain same, and in using insufficient, inadequate, unsafe and unsuitable props to sustain same, a large quantity of slate rock or coal fell upon him from the roof of said mine, breaking his back and totally paralyzing him, in which condition he lingered, suffering great pain, until the 5th day of October 1930, at which time he died as a direct result of his said injury. That his said injury and death were caused and occasioned solely by the gross negligence and carelessness of the defendant in failing to furnish him a reasonably safe place in which to work, and in failing to have sufficient, adequate, suitable and secure props to support and sustain said roof and said slate, rock or coal, and because of the unsafe and dangerous condition of the said mine in which the said Ray was compelled to work by the defendant."

The petition was traversed. On the issue thus formed a trial was had before a jury, resulting in a verdict in favor of the administratrix of $7,500.

The Mannington Fuel Company on this appeal is insisting that the petition does not state a cause of action, that it was entitled to a peremptory instruction, and the court erred in its instructions to the jury.

It should be observed that the cause of action set forth in the petition is, that the company insufficiently and inadequately, with unsafe and unsuitable props, propped the roof, and because of the unsafe and dangerous condition of the mine in which Ray was compelled to work by the defendant, he sustained the injury resulting in his death.

It is shown by the evidence that the room in which Ray was injured was a large one, before the coal was cut and the roof shot on the day he was injured. It is shown without contradiction that the room in its condition before the coal was cut and shot, immediately before he was injured, was not adequately properly, or sufficiently propped, and that the roof was in bad condition. Ray's injury was caused by the falling of the rock or slate onto him while loading...