Moore v. Elkhorn Consol. Coal & Coke Co.
| Decision Date | 04 May 1917 |
| Citation | 175 Ky. 449,194 S.W. 340 |
| Parties | MOORE v. ELKHORN CONSOL. COAL & COKE CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Pike County.
Action by Lewis Moore against the Elkhorn Consolidated Coal & Coke Company. From a judgment dismissing the action, plaintiff appeals. Affirmed.
A. L Ratliff and Childers & Childers, all of Pikeville, for appellant.
Auxier Harman & Francis, of Pikeville, for appellee.
In this action, brought by the appellant to recover of the appellee $3,000 damages for the breaking of his thigh and leg in the latter's mine while he was in its employ as a driver of a mule drawing a coal car, it was alleged in the petition that his injuries were caused by the negligence of appellee and its mine boss in failing to provide him with appliances and a place reasonably safe for the work required of him.
The answer of appellee traversed the allegations of the petition and pleaded contributory negligence and the assumption of risk on the part of appellant. At the conclusion of all the evidence the trial court, on the motion of appellee peremptorily instructed the jury to return a verdict in its behalf, which was accordingly done. The judgment entered in conformity to the verdict dismissed the action at appellant's cost, and, having been refused a new trial, he has appealed.
It appears from the evidence that the accident occurred at the mouth of the fourth left entry of the mine, which was one of a number of side entries turning off from the main entry thereof. Each of the side entries has an air course running parallel to it, which also turns off from the main entry. The fourth left entry and the fourth left air course are about 50 feet apart, parallel to each other. The air course turns off before the fourth entry is reached and at a distance of about 50 feet therefrom. The air enters the mine upon the main entry from which it is turned down the fourth air course and through the left breakthrough over to the fourth entry, where it circulates through the rooms of that entry, and then back up the entry to where it enters the main entry again. A curtain is hung across the main entry between the air course and the fourth left entry, which forces the air up the fourth left air course. But for the curtain, or some similar contrivance, the air, following the line of least resistance, would continue up the main entry instead of entering the fourth left air course. The fourth left entry turns off the main entry on a curve instead of at right angles, leaving some space between the tracks of the main entry and the tracks of the fourth left entry. In this space between the two tracks, and from three to five feet from each of the tracks, a post or pillar is set for the purpose of affording support to the roof of the mine.
When injured appellant was driving a mule attached to a car up the main entry intending to drive straight on past the fourth left entry, and the track switch was to so set that the car would continue on up the main entry. He testified that when the mule had gotten to the air curtain referred to, which was in two folds and parted for his passage, and opposite the fourth left entry, the animal, for some reason, attempted to leave the main entry and enter the fourth left entry, in doing which he pulled the car off the track with such force as to cause appellant to fall therefrom between the bumper of the car upon which he was riding, the post supporting the roof at that point, and some slate at its base, which he claimed appellee had permitted to accumulate so that it obstructed the passway and so narrowed the space between the tracks and the post and slate as to cause him to be caught between same and the car in the manner stated. The presence in the main entry of this slate and the use of the curtains instead of a trapdoor for controlling the air, according to appellant's testimony, constituted the negligence on the part of appellee complained of, and rendered the main entry at that point dangerous for the performance of the duties required of him.
As no witness other than appellant was introduced in his behalf the evidence thus far referred to was furnished by his testimony alone. In addition to...
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Galicich v. Oregon Short Line R. Co.
... ... Smith, 87 S.E. 1082. Cetofonte v. Camden Coke ... Company, 78 N. J. L. 662, 75 A. 913, 27 L. R. A. (N ... 1111. Louisville, E. & St. L. Consol. R. Company v ... Miller, 140 Ind. 685, 40 N.E. 116 ... 538, 539. 18 ... R. C. L. 547, Section 62. Moore v. Elkhorn Etc. Co. (Ky ... App.) 194 S.W. 340, 342 ... 140] ... being struck by a loaded car of coal in a mine. This car had ... come out of a gallery and down ... ...
- Moore v. Elkhorn Con. Coal & Coke Co.