Rex Red Ash Coal Co. v. Barley's Adm'r
| Decision Date | 13 March 1928 |
| Citation | 224 Ky. 485,6 S.W.2d 724 |
| Parties | REX RED ASH COAL CO. v. BARLEY'S ADM'R. |
| Court | Kentucky Court of Appeals |
Rehearing Denied June 19, 1928.
Appeal from Circuit Court, Harlan County.
Action by Sol J. Barley, as administrator of the estate of Daniel Barley, against the Rex Red Ash Coal Company. From the judgment, defendant appeals. Affirmed.
Lee & Snyder, of Harlan, for appellant.
Pope & Huff, of Harlan, for appellee.
Daniel Barley, son of Sol J. Barley, was killed by the falling of a portion of the roof of one of appellant's mines in Harlan county. Sol J. Barley was appointed administrator of his estate and as such instituted this suit against appellant seeking to recover $30,000 in damages. Daniel Barley was 16 years old when he was killed and had been working in the mine since the 28th day of October, 1926, until the day of his death, which was December 18th of the same year. It is alleged that young Barley was killed in the line of his duty and while working within the scope of his employment. The negligence alleged is that appellant had failed and neglected to properly inspect the entry in which appellee's intestate was killed; that it had failed and neglected to properly examine, inspect, and scale the overhead roof along the entry; that it had failed and neglected to properly secure the entry and the haulroad in the entry where he was required to work by posts, props, cross-timbers, or other safe contrivances; that it failed and neglected to warn the decedent of the alleged dangerous condition of the entry and mine, although it knew, or by the exercise of ordinary care could have known, that the entry was unsafe; that the public haulroad was built through an old section of the mine; and that appellant allowed the roof of that section of the mine to take weight without protecting the haulway.
Appellant traversed each allegation of negligence found in the petition, and as a further defense it alleged that it did not employ Daniel Barley to work for it, but that he was employed by his father, Sol J. Barley, to work for him and on his number; that Sol J. Barley, was warned by appellant that Daniel Barley would not be allowed to work in the mine at all except when his father was present and directly under his supervision. It is alleged that, but for the violation of the instructions so given, young Barley would not have been killed, and that at the time he was killed that he was working in the mine wrongfully and in violation of the instructions of appellant. It is further alleged in the answer that Sol J. Barley knew that his son was inexperienced and that he knew the danger incident to the work which his son was doing, and that it was on account of the negligence of Sol J. Barley in sending his son into a dangerous place contrary to the instructions given by appellant that brought about his death. In another paragraph of the answer it is alleged that Sol J. Barley had been assigned a particular place in the mine in which to work, and that he and Daniel Barley had no right or authority to work in any other place or section of the mine, and that Daniel Barley, under the instructions of his father, went into a different section of the mine where he was killled.
Appellant was not operating under the Workmen's Compensation Act (Ky. St. §§ 4880-4987) and was therefore not entitled to rely upon the defense of contributory negligence, assumed risk, or fellow-servant doctrine. Saxton Coal Co. v Kreutzer's Adm'x, 202 Ky. 387, 259 S.W. 1022; Gatliff Coal Co. v. Powers' Adm'r, 219 Ky. 839, 294 S.W. 472.
The testimony in this case showed that in the latter part of October, 1926, Sol J. Barley requested that his son be employed to work in the mine. His request was refused because the son was under 16 years of age, but he was advised that his son might begin work when he reached that age. He did not commence work until after he reached the age of 16. Appellant admits that it permitted Daniel Barley to work, but claims that the permission was accompanied by the limitation that he should work in a certain portion of the mine and under the direct supervision of his father, and not elsewhere or otherwise. There is a sharp conflict in the evidence as to whether there was any such limitation on the employment of the boy. The father testified there was no such limitation, and that made it a question for the jury.
Even if there had been such limitations in connection with his employment, there is a sharp conflict in the evidence as to whether Daniel Barley was at his proper working place at the time he was killed, which made it a question for the jury. Where there is evidence that the employee was not disobeying orders at the time of his injury or death, or where the facts are such that it may be inferred that he was not disobeying orders, the question is for the jury. Saxton Coal Co. v. Kreutzer's Adm'x, supra; Gatliff Coal Co. v. Powers' Adm'r, supra; Clark County Construction Co. v. Richards' Adm'r, 202 Ky. 276, 259 S.W. 331; General Construction Co. v. Ford, 211 Ky. 159, 277 S.W. 313.
The testimony showed that the father worked with his son only a few days after the son was employed. This is not disputed. There is evidence that the superintendent and foreman of appellant knew that the son was working in the mine when the father was not present, although the evidence is conflicting on this point.
There is evidence that the haulroad where the son was working at the time of his death was in a dangerous condition, and that appellant knew of such condition, although there is a conflict in evidence on this point. The evidence showed without contradiction that a slab of slate 17 feet long fell from the roof over the haulroad, and that it was the falling of this slate which caused the death of appellee's intestate. As the roof of the mine was under the exclusive control, management, and maintenance of the master and other negligence is shown on the part of the master, it is probable that the doctrine of res ipsa loquitur would apply, although it is not necessary to go into that question. The evidence was sufficient to take the case to the jury and to support the verdict for $4,000, which makes it necessary to consider the errors assigned for reversal. One is that the court allowed appellee to introduce incompetent evidence in his behalf over the objections of appellant. One of the witnesses for appellee was asked as to the cost of putting in props to hold up the roof, and he stated that the cost would have been insignificant. If this evidence was incompetent, and we are not called upon to...
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