Trosper Coal Co. v. Crawford

• Decision Date: 13 February 1913
• Parties: TROSPER COAL CO. v. CRAWFORD.
• Court: Kentucky Court of Appeals

153 S.W. 211

152 Ky. 214

TROSPER COAL CO. v. CRAWFORD.

Court of Appeals of Kentucky.

February 13, 1913

Appeal from Circuit Court, Knox County.

Action by George Crawford against the Trosper Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

P. D Black, Black, Golden & Owens, all of Barbourville, for appellant.

J. M Robsion, of Barbourville, for appellee.

LASSING J.

George Crawford, while in the employ of the Trosper Coal Company, in its mine in Knox county, Ky. in the capacity of mule driver was injured by falling slate. He brought suit to recover for the injury, upon the theory that the company had failed to furnish him a reasonably safe place in which to work. The company denied liability and, in addition, pleaded contributory negligence. These affirmative matters in the answer were traversed. Upon these issues the case was submitted to a jury for trial, with the result that plaintiff recovered a verdict and judgment for $2,150. The company appeals and seeks a reversal upon four grounds: First, because of error, during the progress of the trial, in admitting incompetent evidence; second, because of the failure of the court, at the conclusion of the plaintiff's evidence, to peremptorily instruct the jury to find for it; third, because the instructions given by the court did not properly present the law of the case, and were prejudicial to it; and, fourth, because the verdict is grossly excessive.

In the outset, it may be stated that the evidence fails to show that appellee did anything which, in the least, contributed to bring about his injury; and this branch of the defense will be dismissed without further notice.

On the afternoon of July 26, 1911, while driving a car loaded with props, or timbers for propping, in said mine, along what is known as the first right entry, a piece of slate, some four or five feet in length, three feet wide, and three or four inches in thickness at one end, tapering to a feather's edge at the other, fell from the roof and struck him upon the back, knocking him down in between the car and the mule in the center of the track. With the aid of two employés of the company, who were present at the time, the car, which had run party over his body, which was lying in the center of the track between the car wheels, was pulled back off of or from over him; and he was taken outside of the mine, where it was found, upon examination, that there was a skinned place, the size of a man's hand, in the small of his back, and that he complained of considerable pain. The mine doctor examined and prescribed for him. No bones were broken. There is no question that the slate fell upon him, or that he sustained an injury which, for a time at least, disabled him to such an extent that he was unable to work. The company concedes this, but insists that the injury was not a serious one; and that, if any recovery is justified, the sum awarded by the jury is grossly excessive.

Appellee rests his right to recover upon the theory that the company, some time prior to the accident was advised that the roof in the right entry, for a considerable distance, was in a dangerous and unsafe condition and should be propped up; that, although those in charge of the company knew this fact, they made no effort to prop it, but, on the contrary, with knowledge of the dangerous and unsafe condition of this entry, suffered employés of the company to continue to use it.

The company, for defense, relies upon the uncontradicted evidence of three of its employés, to the effect that all of the entries to the mine, and particularly this entry where the accident occurred, were inspected daily, and had been inspected in the forenoon of the day upon which the accident happened; and that, upon such inspection, no evidence of the dangerous or unsafe condition of the roof at that point was discovered. These three witnesses testify that they not only examined this portion of the mine roof by looking at it, but tapped upon it to ascertain if the slate was loose: that they saw nothing wrong with it; that, when tapped upon with a pick, it appeared to be solid; that to those experienced in mines an unsafe condition of the roof thereof, due to loose or detached slate, can readily be detected by tapping upon it with a pick or other heavy instrument; and that, if the slate is loose or liable to fall, it has a drummy, hollow sound. The testimony of these witnesses shows that this is one of the most reliable tests known to miners in determining when the roof of a mine is safe.

Without considering in detail the testimony, it may be said that the weight of the evidence as to the inspection of this mine is with appellant; but, under the well-established rule, if there is any evidence from which the jury would be warranted in finding that the company had not used or exercised ordinary care to maintain this entry in a reasonably safe condition for the use of its employés, whose business required them to pass through it, the court properly refused...