McDonald's Adm'r v. Wallsend Coal & Coke Co.

• Decision Date: 17 March 1909
• Citation: 117 S.W. 349,135 Ky. 624
• Parties: McDONALD'S ADM'R v. WALLSEND COAL & COKE CO.
• Court: Kentucky Court of Appeals

117 S.W. 349

135 Ky. 624

McDONALD'S ADM'R v. WALLSEND COAL & COKE CO.

Court of Appeals of Kentucky.

March 17, 1909

Appeal from Circuit Court, Bell County.

"To be officially reported."

Action by Harvey McDonald's administrator against the Wallsend Coal & Coke Company. From a judgment of nonsuit, plaintiff appeals. Reversed and remanded.

B. B Golden and W. F. Davis, for appellant.

William Law and O. V. Riley, for appellee.

O'REAR J.

Harvey McDonald, a miner in the service of appellee, was injured by being run against by an electric motor and train of cars in appellee's mine in Bell county. There was a custom, as well as an agreement between the mineowner and the miners that the latter were to "shoot" their coal twice a day--at 11:15 a. m. and 4:15 p. m. One hundred to 150 coal miners worked in the mine. When they had cut under the face of the coal far enough to place a charge of powder in a drilled hole at the top and fire it off, the coal would be knocked down. The smoke and gas generated by the discharge made it impossible for the miners to stay in the rooms and passages for awhile after the shots were fired; so it was arranged that all should shoot about the same time, which was near enough to quitting time, whether for the noon rest or in the evening, that the mines would clear of smoke and gas before the men went back to work. From the time of shooting 15 minutes were allowed the miners in which to get out of the mine. On the day appellant's intestate was injured the miners began shooting about 4:15, the intestate among the others. As they set off the charges, they withdrew and started out the main entry to leave the mine, which was the only way out. Electric motors were used to take in the empty coal cars, and to draw out the loaded cars. These motor cars had a speed of about 12 miles an hour. The main entry was about five feet high. The entry varied in width, but at places was less than six feet. The entry was not straight. An overhead wire to the side of the entry transmitted the current of electricity, which was fed to the motor by a trolley from the side of the motor car. At 4:15 p. m. the motor car was on the outside of the mine. The motorman then notified the mine boss that the headlight on this car was out of fix, and was not of use. The gong on the car was also out of repair, and could not be sounded. The mine boss promised to have the car repaired by morning, but directed the motorman to take in another lot of empty cars. The motorman demurred on account of having no headlight, and because it was then shooting time, and the miners would be coming out. The mine boss looked at his watch and told the motorman that if he would hurry up, he could make it in time. The motor car, coupled to about 20 empty coal cars, then started in the mine, running at its highest speed. When in the mine about 1,200 or 1,500 feet, and directly after it had passed around a curve, the train ran into a squad of miners who were walking along the track coming out of the mine after their day's work. There was no warning of the approach of the train except the humming noise made by the trolley, and the noise of the cars on the rails. The noise, of course, indicated that a motor was running on that track, but whether coming in or going out it would not very well indicate. As the trolley passed the retaining brackets electric flashes would appear at those points. But, as the cars were around the bend, these flashes would not show further than the bend. The intestate was in this squad of miners. Their walking and talking made some noise, and the frequent discharges of the blasts in the rooms, which were then being set off, further confused the sounds. This was the situation when the train dashed into the midst of this company of miners. They jumped to the side of the track for safety. But decedent McDonald failed to reach a place of safety. At the point where he jumped off the track the entry was too narrow to admit his person in the clear at the side of the cars. As they passed, they struck him, caught him, and rolled him along the side of the mine, bruising and mangling him so that he died within three days. This suit is by his administrator to recover for the negligent destruction of the life of the intestate. At the close of the plaintiff's evidence, which disclosed the foregoing facts, the court gave the jury a peremptory instruction to find for the defendant. It is supposed this instruction was based upon the fact that the intestate was himself guilty of contributory negligence, but for which he would not have been hurt. The contributory negligence in this case is thought to have consisted of two factors: One, the decedent was either inattentive and failed to listen for the cars, or, hearing them, failed to exercise due care for his own safety; the other is that on the opposite side of the entry where he was struck there was room enough for him to have stood in safety while the cars passed.

We cannot doubt it was negligence, we might say criminal negligence, in running that train of cars at that time and under the circumstances at such high speed without headlight or gong to announce its approach. It was such an utter disregard of the lives of the men who were known to be coming out that entry, and who had to walk along the track, the entry being too narrow in many places to admit of their walking by the side of the track, or to get into a place of safety by its side, as makes the master liable for any injury inflicted upon them by reason of that act. Nor was it certain that the decedent was guilty of contributory negligence. He had a right to use the track to walk upon in coming out the mine. No other way was provided him. He had the right to assume that the master would not run the motor car into the mine while the miners were coming out--particularly not at the speed run in this instance--and without a headlight or gong on the motor car. He was not required to give attention to or to anticipate what reasonably he had not cause to suspect. Besides, he had not control of the other miners' movements--their walking, talking, and laughing as they went along the passage way, nor the shooting that was going on in the rooms along the route. All these matters tended to confuse sounds, which were equally well known to the master and those operating the motor car, and decedent had the right to assume that with knowledge of such conditions the master would regulate the running of the trains so as to make the situation as safe for the miners as the conditions admitted of. When, contrary to such reasonable presumptions, the master ran the train of cars...