McHenry Coal Co. v. Robinson

• Decision Date: 14 March 1916
• Citation: 169 Ky. 121,183 S.W. 489
• Parties: MCHENRY COAL CO. v. ROBINSON.
• Court: Kentucky Court of Appeals

183 S.W. 489

169 Ky. 121

MCHENRY COAL CO. v. ROBINSON.

Court of Appeals of Kentucky.

March 14, 1916

Appeal from Circuit Court, Ohio County.

Suit by Shelby Robinson against the McHenry Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

H. P Taylor, of Hartford, for appellant.

Ernest Woodward and Otto C. Martin, both of Hartford, and Ben D Ringo, of Owensboro, for appellee.

MILLER C.J.

The appellee, Shelby Robinson, was employed as a driver of a mule car, hauling coal out of the thirteenth north entry of appellant's mine, at Echols, Ky. Fielden Turner was also a driver in the same mine hauling coal out of the thirteenth south entry, while Bush was a driver in the entry east of the main entry and leading into it. The thirteenth north entry and the thirteenth south entry entered the main entry at points nearly opposite each other. Minton was employed as a flagman, for the purpose of directing the drivers at the junction of these entries, so as to prevent collisions between the cars. On July 24, 1914, Robinson, while driving out of the thirteenth north entry, was directed by Minton to go "ahead" with his load, consisting of two cars of coal; and, at the same time, Minton flagged Turner, who was coming out of the south entry, to stop, Turner denies that Minton flagged him to stop, but says Minton gave him the signal to "come on." At any rate, by some misunderstanding of orders, the cars driven by Robinson collided with the car driven by Turner, at the point where the thirteenth north entry entered the main entry, and resulted in Robinson's right hand being badly smashed by having it caught between the side of the car and the face of the coal. He recovered a judgment for $3,000, and the company appeals.

The answer contained a traverse; pleas of contributory negligence and assumed risk upon the part of Robinson; and the further plea that Robinson, Minton, and Turner were fellow servants.

The gravamen of plaintiff's complaint is found in the following excerpt from the petition:

"Plaintiff says that the injuries hereinbefore referred to occurred in Ohio county, Ky. and that the agents and servants of the defendant, in charge and control of said cars, mines, and mining operations, and who were superior in authority to the plaintiff and engaged in a different line of employment, managed and operated the said mules, cars, and their drivers with such gross negligence and carelessness that a car and mule driven by Fielden Turner collided with a car and mule which this plaintiff was engaged in driving, at a point in the mine where, and at a time when, the defendant had notified this plaintiff that the right of way for this plaintiff and his car was clear and free from danger."

1. It is first insisted that appellant's motion for a peremptory instruction, made at the close of the testimony should have been sustained; and, in support of this contention, it is insisted that there is neither proof nor allegation that the plaintiff relied on the averment of the petition that the right of way was clear and free of danger. This criticism is based upon the theory that the plaintiff rested his case solely upon the allegation that he was injured because Minton had told him that the right of way was clear and free of danger. While it is true the petition does contain that allegation, it is further charged, as is shown above, that appellant's servants in charge of its cars, and mines, and mining operations, who were superior in authority to the plaintiff and engaged in a different line of employment, managed and operated the mules, cars, and the other drivers with such gross carelessness and negligence that the car and mule driven by Fielden Turner collided with the cars and mule driven by the plaintiff; and there was abundant testimony to sustain that allegation. Minton admitted that he directed Robinson to "come on" with his car, and completely corroborated the statement of Robinson in that respect. Clearly, either the negligence of Minton or Turner caused the accident; and that one of them was negligent clearly appears from their own testimony. Treating the allegation as to the safety of the way as surplusage, there was both allegation and proof as to the negligent handling of the car drawn by Turner; and that was the basis of plaintiff's case. In switching, or "sluing," the car, as the witness speaks of it, it was the habit of Robinson and other miners to place one hand upon the hip of the mule, and the other hand upon the corner of the car, the driver standing, or sitting upon the seat, immediately in front of the car. In this way, by pushing on the mule with one hand, and pulling on the car with the other, the car could be switched according to the requirements of the track. In further support of its contention that the motion for a peremptory instruction should have been sustained, appellant insists that, in "sluing" his car, Robinson negligently placed his hand upon the outside of the car, instead of on the inside, as he had been directed to do; and that, if his hand had not been placed upon the outside of the car, it would not have been caught between the car and the rib of coal. There was an attempt made by appellant to show that this practice was prohibited by a rule of the mine, but this attempt resulted in a total failure. Neither was it shown that Robinson was instructed not to place his hand upon the outside of the car. Furthermore, Robinson states, and in this he is not really contradicted, that it was necessary to place his hand upon the outside of the car in order to efficiently switch the car. appellant further insists that by giving instruction No. 1, by which the court allowed a recovery in case the appellant's servants Minton and Turner, or either of them, negligently or carelessly suffered and permitted the collision between the two cars, it enlarged the issue made by the pleadings, by allowing the jury to consider every kind of negligence, and ignored and refused to submit the issue of Minton's assurance of safety to Robinson, as heretofore pointed out. But, as above stated, the petition expressly relied upon the negligence of appellant's...