Palmer's Adm'x v. Empire Coal Co.

• Decision Date: 13 January 1915
• Citation: 172 S.W. 97,162 Ky. 130
• Parties: PALMER'S ADM'X v. EMPIRE COAL CO.
• Court: Kentucky Court of Appeals

172 S.W. 97

162 Ky. 130

PALMER'S ADM'X v. EMPIRE COAL CO.

Court of Appeals of Kentucky.

January 13, 1915

Appeal from Circuit Court, Christian County.

Action by Isom Palmer's Administratrix against the Empire Coal Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Douglas Bell and Trimble & Bell, all of Hopkinsville, for appellant.

Gordon & Gordon & Cox, of Madisonville, for appellee.

CLAY C.

The Empire Coal & Coke Company, a Delaware corporation, owns certain mines at Empire, Ky. which are leased by the Empire Coal Company, a Tennessee corporation. Isom Palmer, a miner in the employ of the Empire Coal Company, was killed by falling slate. His administratrix brought this action to recover damages for his death. On the first trial, the jury returned a verdict in favor of plaintiff against the Empire Coal Company for $1,250. A peremptory instruction was given in favor of the Empire Coal & Coke Company. Subsequently a new trial was granted. On the second trial the court directed a verdict in favor of the Empire Coal Company. Plaintiff appeals.

It is insisted that a new trial was improperly granted, and that the case should be remanded, with directions to enter judgment on the verdict for $1,250, rendered at the first trial. It is also insisted that the court erred in directing a verdict in favor of the defendant on the last trial. In her original petition, plaintiff based her right to recover on gross carelessness and negligence of the defendants in failing to properly support and prop up the roof of the mine at the place where plaintiff's decedent was engaged at work. Subsequently plaintiff amended her petition, and based her right to recover on the failure of defendants to furnish her decedent a reasonably safe place to work. It developed on the first trial that the decedent had been employed in the mine for a period of about 26 years, and was a miner of skill and experience. He was engaged in shooting and picking down the coal and loading it on cars. It was his duty to prop the roof with timber or props furnished him by the defendant. During the progress of the case, the trial court permitted plaintiff to prove, over the objection of the defendant, that the decedent had requested the foreman of the mine to furnish him props, and the foreman had promised, but failed, to do so. The only ground on which the case was submitted to the jury was the failure of the defendant to furnish decedent at his working place a sufficient number of caps and props to keep the roof secure, though this ground of recovery was not relied on in either the original or the amended petition. After the new trial was granted, plaintiff filed a second amended petition, pleading, in substance, a failure on the part of the defendant, the Empire Coal Company, to furnish decedent a sufficient number of props and caps to properly protect and support the roof of his working place, although decedent had selected and marked a sufficient number of props and caps for that purpose. On the second trial plaintiff showed that her decedent had requested props, and that the mine foreman had promised to furnish them. Plaintiff failed to show that the decedent had selected and marked any props. To overcome the effect of this failure on his part, plaintiff sought to show that under the custom of the mine in question it was not the duty of the miner to select and mark his props, but merely to request the foreman to furnish props, which he would always do upon request.

Section 2739b, Kentucky Statutes, provides as follows:

"Caps and Props to be Supplied to Miners. Each owner, lessee or operator of every mine to which the mining laws of the state apply, shall provide and furnish to the miners employed in said mine a sufficient number of caps and props, said props to be sawed square at each end, to be used by said miners in securing the roof in their rooms and at such other working places where by law or custom of those usually engaged in such employment it is the duty of said miners to keep the roof propped, after the miner has selected and worked the same."

1. As before stated, the only grounds for negligence relied on in the original and first amended petition were the failure of the defendant to prop the roof of decedent's working place and its failure to furnish him a reasonably safe place to work. While it is well settled that negligence may be pleaded in general terms, yet it is equally well settled that where the plaintiff specifies the negligence on which he relies, his recovery is limited to such negligence. Gaines v. Johnson, 133 Ky. 507, 105 S.W. 381, 32 Ky Law Rep. 58; Lexington R. Co. v. Britton, 130 Ky 676, 114 S.W. 295. This is not a case where evidence on an issue not made by the pleadings was heard...