Perkins-Harlan Coal Co. v. Mercer

• Citation: 235 Ky. 618,32 S.W.2d 14
• Parties: PERKINS-HARLAN COAL CO. v. MERCER.
• Decision Date: 25 March 1930
• Court: Kentucky Court of Appeals

32 S.W.2d 14

235 Ky. 618

PERKINS-HARLAN COAL CO. v. MERCER.

Court of Appeals of Kentucky

March 25, 1930

Rehearing Denied Nov. 25, 1930.

Appeal from Circuit Court, Whitley County.

Action by Jess Mercer against the Perkins-Harlan Coal Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Tye Siler, Gillis & Siler, of Williamsburg, for appellant.

G. M Sharp, of Williamsburg, for appellee.

CLAY J.

This is an appeal from a judgment awarding appellee $5,000 damages for personal injuries.

Appellant's chief insistence is that it was entitled to a peremptory instruction.

The facts are these: Appellant operated a coal mine in Harlan county, and appellee, Jess Mercer, a coal miner, had been in its employ for several months. He and his buddy, Raymond Lawson, worked together. On the morning of the accident Mercer and Lawson discovered that the room in which they had been working was in a dangerous condition, and started out of the mine. Jack Mabletini, assistant mine foreman, concurred in the view that the room was dangerous, and took them to room No. 1, or Old Five Cross entry, and directed them to work there and to load out the coal that had been cut some time before. In the roof of the room was a large piece of slate that extended from the face of the coal into the room for a distance of 2 or 2 1/2 feet. The slate had broken loose, and between it and the roof there was a large crack. When they entered the room, Jack Mabletini pointed to the slate and told them to take it down if they could, and if not, to timber it. According to Mercer and Lawson, they protested against working there and wanted to leave, but Mabletini said, "Oh, go on, Lawson, by setting two or three timbers will make that place safe to take that cut out." There was a rule of the mine that for taking down slate or timber the men were paid 50 cents an hour. Mabletini told Mercer and his buddy that while doing the work they would be making expenses. After Mabletini left, Mercer and Lawson got a steel bar, placed it in the crack over the slate, and endeavored to pull the slate, but were unable to do so. There were plenty of timbers in the room, and they then procured three of them and placed them under the slate where it extended into the room. Mercer then turned the coal loose and Lawson loaded it on the car. Mercer then began to rake the dust out with his pick. After he had taken the dust out "two feet along the face, and 12 to 18 inches deep along the coal," the slate fell and injured him. It further appears that the roof of the mine had been propped the day before, but not at the point of accident. The record also discloses that Mercer had had experience in mining coal, and setting timbers, and taking down slate.

As appellant, though coming within its provisions, had not elected to operate under the Workmen's Compensation Act the defenses of contributory negligence and assumed risk were not available. Section 4960, Kentucky Statutes; Gibralter Coal Mining Co. v. Nalley, 214 Ky. 431, 283 S.W. 416. However, it was still necessary to show that appellee's injuries were due to some act of negligence on the part of appellant. Deboe's Adm'r v. West...