W.G. Duncan Coal Co. v. Thompson's Adm'r

• Decision Date: 06 February 1914
• Parties: W. G. DUNCAN COAL CO. v. THOMPSON'S ADM'R.
• Court: Kentucky Court of Appeals

162 S.W. 1139

157 Ky. 304

W. G. DUNCAN COAL CO. v. THOMPSON'S ADM'R.

Court of Appeals of Kentucky.

February 6, 1914

Appeal from Circuit Court, Muhlenberg County.

Action by W. J. Thompson's administrator against the W. G Duncan Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Wm. H Yost, of Madisonville, Howard & Gray, of Greenville, and Yost & Laffoon, of Madisonville, for appellant.

Milton Clark and W. C. Jonson, both of Greenville, for appellee.

CLAY C.

W. J Thompson, while working in a mine of the W. G. Duncan Coal Company, was killed. In this action for damages, his administrator recovered judgment in the sum of $4,500. The coal company appeals.

Thompson who was 46 years of age, had been working as a miner for about two years. A contract made by the United Mine Workers of America with the Employers' Association, of which the coal company was a member, was introduced in evidence without objection from either side. Section 9 of that contract provides: "The company shall lay all roads and timber all 'bad places' not caused by the miner's negligence." The evidence of plaintiff tends to show that the roof of the room where he was at work was "crumbly" and full of seams, and on this account it could not be made reasonably safe by ordinary propping. On the other hand, the evidence for the defendant is to the effect that the roof was not bad, and could have been rendered reasonably safe had it been properly propped by the decedent. It was also shown that a few hours before decedent's death, which was caused by the falling of slate, decedent had been cautioned by the mine foreman and assistant mine foreman in regard to the condition of the roof, and had been told to prop it. Defendant also proved that it was plaintiff's duty to prop within ten feet of the face of the coal, and that none of the props had been set by him within that distance. On these two points plaintiff proved that a prop was found on top of the fallen slate, which indicated by its appearance that it had been set by the decedent, and that props could not be set nearer the face of the coal on account of a "break-through."

Defendant insists that the court erred in failing to give a peremptory, in view of the evidence that decedent had been warned of the dangerous condition of the roof, and had been told to prop it, and that he failed to prop it within the required distance. On the issue, however, as to whether or not it was the duty of the decedent to prop, or of the defendant to timber, the evidence is conflicting. If the condition of the roof was such that it was the duty of the decedent to prop it, there can be no recovery. On the other hand, if the roof was in such condition that it was the duty of the company to timber, and, by reason of its failure to do so, the decedent, while exercising ordinary care for his own safety, was injured and killed, the fact that the company's foreman told the decedent to do the propping, when it was not his duty to do it, will not relieve the company from liability.

Instruction No. 1 is as follows: "The court instructs the jury that if they believe from the evidence that the roof in the defendant company's mine, and the place where the same fell on deceased, was a 'bad place' within the meaning of the contract between the parties, which was read in evidence to the jury, and that, by reason thereof, said room where deceased was killed was not a reasonably safe place for deceased to work in, and that the defendant company or its agents superior in authority to the intestate knew of said unsafe or defective condition, if any, before the deceased was killed, and that the deceased did not know, and by the use of ordinary care could not have known, thereof, and that the deceased was killed by slate or rock from the...