Royal Collieries Co. v. Wells

• Decision Date: 03 May 1932
• Parties: ROYAL COLLIERIES CO. v. WELLS.
• Court: Kentucky Court of Appeals

50 S.W.2d 948

244 Ky. 303

ROYAL COLLIERIES CO. v. WELLS.

Court of Appeals of Kentucky

May 3, 1932

Appeal from Circuit Court, Johnson County.

Suit by Ed Wells against the Royal Collieries Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Fred Howes, of Paintsville, for appellant.

J. F Bailey, and Z. Wells, both of Paintsville, for appellee.

WILLIS J.

Ed Wells was employed by the Royal Collieries Company as a coal loader. On September 17, 1914, he quit work, and in the following March filed a suit against the company alleging that he had been injured by bad air negligently permitted to accumulate in his working place. On the first trial of the case a verdict was rendered in favor of the defendant, but the circuit court granted a new trial. On the next trial the plaintiff recovered a verdict and judgment for $2,000, but upon an appeal to this court the judgment was reversed. Royal Collieries Co. v. Wells, 210 Ky. 600, 276 S.W 515. The case was tried again, resulting in a verdict and judgment in favor of the plaintiff for $2,000. The present appeal is from that judgment.

It is insisted that the judgment should be reversed for the following reasons:

(1) Because there was no change in the issues or testimony, and this court's former opinion constitutes the law of the case. (2) The lower court erred in overruling appellant's motion for a directed verdict. (3) The lower court erred in the admission of incompetent testimony. (4) The verdict is flagrantly against the evidence. (5) The verdict is excessive.

1. It is well settled that the opinion of this court upon an appeal constitutes the law of the case, thereafter, unless there is a substantial change in the issues or in the evidence. McClintock v. McClure, 171 Ky. 714, 188 S.W. 867 Ann. Cas. 1918E, 96; Louisville & N. R. Co. v. Stewart's Adm'x, 163 Ky. 823, 174 S.W. 744; Louisville & N. R. Co. v. Benke's Adm'r, 176 Ky. 259, 195 S.W. 417; Fletcher American Co. v. Culbertson, 228 Ky. 734, 16 S.W.2d 175; Commonwealth Life Ins. Co. v. Goodnight's Adm'r, 235 Ky. 699, 32 S.W.2d 25, There was no change in the issues in this case, but it must be determined whether the evidence was substantially different, and not merely cumulative, on the material questions involved.

The evidence on the former appeal was authoritatively interpreted by the opinion then delivered. The opinion referred to the rule that in all industrial employments there are two classes of risks, commonly called the ordinary and the extraordinary risks, to which a servant is exposed. The ordinary risks are such as are inseparable from the service, inhere in the nature of the work, and are not caused or created by any negligence chargeable to the master. Such risks are assumed by the servant as an incident of the service. Extraordinary risks are those created by the masters' negligence, and such dangers are not assumed by the servant, except in instances where the servant is aware of the menace and voluntarily exposes himself to it, or the danger is so obvious and palpable that an ordinarily prudent person would have observed, appreciated, and avoided it. There are some exceptions to both of these rules that were not noticed in the former opinion and need not be noted now. The rule in force at the time of the injury involved in this case was announced and applied in the case of Low v. Clear Creek Coal Co., 140 Ky. 754, 131 S.W. 1007, 33 L. R. A. (N. S.) 656, Ann. Cas. 1912B, 575, which was cited in the former opinion. A risk caused by the neglect of the master to perform a statutory duty is not assumed by the servant, but the servant is responsible for his own contributory negligence. To constitute contributory negligence, there must be some failure on the part of the laborer, in addition to the ordinary risk imposed by the character of his work under the conditions created by the master's conduct, which would amount to culpable negligence on the part of the servant. The rule as to contributory negligence was expounded in the case of Thayer v. Kitchen, 145 Ky. 554, 140 S.W. 1052, 1054, also cited in the former opinion, as follows:

"It is also insisted that, in continuing to work in the mine as he did, the servant was guilty of contributory negligence barring his right of recovery. But we think that was a question for the jury. A servant may know a thing is defective, and yet by reason of his youth, ignorance, or inexperience be incapable of comprehending the danger from it. By continuing at work the servant cannot be said to be negligent unless he not only knows the defects but knows the danger, or by ordinary care in the exercise of his employment should know it. Dow Wire Works v. Morgan, 96 S.W. 530, 29 Ky. Law Rep. 854; Meade v. Ashland Steel Co., 125 Ky. 114, 100 S.W. 821, 30 Ky. Law Rep. 1164; Cumberland Tel. Co. v. Graves, 104 S.W. 356, 31 Ky. Law Rep. 972; Keen v. Keystone Lumber Co. [ Ky.] 118 S.W. 355; L. & N. R. R. Co. v. McMillen [Ky.] 119 S.W. 221; Louisville, H. & St. L. R. Co. v. Armstrong, 137 Ky. 146, 125 S.W. 276. There is a peculiar reason for applying this rule in the case of a subtle poison pervading the air, whose effect is only known to the medical profession, or those who have studied the subject. Kitchen may have been willing to undergo the discomforts of a headache or the temporary sickness that resulted when he left the mine, but it may be that he would not have been willing to take the risk of the noxious gases if he had known their effect on his constitution, and the danger of destroying his entire vitality if he continued to work in the mine. The rule to be applied to an ignorant servant should be more liberal in the case of a subtle agency like bad air than in the case of those physical things like the want of props or the cracking of a roof which he could plainly see and any man of prudence would understand the danger."

These authorities, recognized and referred to by this court in the former opinion, furnished the rules of law by which the evidence was to be measured. The facts on the former trial were obscure, and the record was difficult to understand, as was expressly mentioned by the court. But, as the facts were construed by the court, they failed to prove any negligence or breach of statutory duty by the master, or that the injury arose from other than an ordinary risk of the employment, which was assumed by the servant. Upon these assumptions the court ruled that a peremptory instruction should have been given. The conclusion was rested upon the ground that the plaintiff was an experienced miner who had deliberately exposed himself to a known danger. It is now insisted that no substantial difference is found in the evidence on the present appeal and that contained in the record on the former appeal. Much of it undoubtedly is the same as it was before, but there are material differences. It is now shown without contradiction that Wells was not, at the time of his injury, a miner with six years' experience. At the time of the trial which was under review on the former appeal more than five years had elapsed from the time of the injury, and the opinion assumed that his entire experience had been acquired before the injury. Hence he then stood in the attitude of an experienced miner, which was shown on the last trial to have been radically erroneous.

Wells had worked but a few days in the room where he was hurt, and his entire experience as a coal loader and miner before his injury covered but three months. And during that period he had not learned of the dangers lurking in poisonous gases in a mine. Certainly no one could fail to appreciate this material difference in the facts as affecting contributory negligence, or assumed risk. The maps in the present record and which were not introduced on the former appeal, render the testimony intelligible, and show very clearly that the air currents were obstructed so as not to serve the room where Wells was working. The obscurities in the former record are now cleared up, and the differences in the two are so substantial as to require a different conclusion as to the application of the law to the conduct of the plaintiff. The conditions in the working place of Wells were entirely different from the conditions in the other rooms which were supplied with air. The witnesses, Dawson, Sparks, and...