West Kentucky Coal Co. v. Shoulders' Adm'r

• Decision Date: 20 May 1930
• Citation: 234 Ky. 427,28 S.W.2d 479
• Parties: WEST KENTUCKY COAL CO. et al. v. SHOULDERS' ADM'R.
• Court: Kentucky Court of Appeals

28 S.W.2d 479

234 Ky. 427

WEST KENTUCKY COAL CO. et al. v. SHOULDERS' ADM'R.

Court of Appeals of Kentucky

May 20, 1930

Appeal from Circuit Court, Webster County.

Action by George Shoulders' administrator against the West Kentucky Coal Company and others. On death of defendant, Mark Townsend, the case was revived against his administrator. Verdict was directed in favor of defendant Edgar Coffman and, from the judgment rendered against the two remaining defendants, they appeal.

Reversed and new trial granted.

Rayburn & Withers, of Dixon, for appellant.

Blackwell & Lisman, of Dixon, for appellee.

WILLIS J.

George Shoulders was employed by the West Kentucky Coal Company, and was engaged in driving an entry in a coal mine. His immediate foreman was Mark Townsend. In June, 1926, Shoulders was killed by a fall of slate or rock, and his administrator sued the coal company and Townsend and Edgar Coffman who was employed in the same mine as a pit boss, to recover damages for the death. The trial court held that a case was not made out against Coffman, and directed the jury to find a verdict in his favor. The case was submitted to the jury as to Townsend and the coal company, and a verdict was returned in favor of the plaintiff fixing the damages at $30,000. Pending the action, Townsend died, and it was revived against his administrator. The administrator of Townsend and the coal company have appealed. It was alleged in the petition, and admitted by the defendants, that the West Kentucky Coal Company, although eligible, was not operating under the Workmen's Compensation Law. In such situation the coal company is deprived of the defenses of contributory neglect and assumed risk; but nevertheless it is not liable for an injury to its employee, unless such injury resulted from negligence for which the company is responsible. Ky. St. § 4960; Gibraltar Coal Mining Co. v. Nalley, 214 Ky. 431, 283 S.W. 416; Gatliff Coal Co. v. Sumner, 196 Ky. 592, 245 S.W. 144; Gatliff Coal Co. v. Powers, 219 Ky. 839, 294 S.W. 472; Deboe v. West Kentucky Coal Co., 216 Ky. 198, 287 S.W. 568; Horse Creek Mining Co. v. Frazier, 224 Ky. 211, 5 S.W.2d 1064; Nugent Sand Co. v. Howard, 227 Ky. 93, 11 S.W.2d 985.

The first insistence of the appellants is that they were entitled to a peremptory instruction. The argument is based upon an assumption that the danger which resulted in the death of Shoulders was created by himself in his own working place, where it was his duty to inspect and, when danger was discovered, to protect himself against it. It is also contended that he disobeyed orders by firing a shot and taking down coal when he was directed "to clean up the working place." There was testimony for the plaintiff which tended to show that the injury occurred in the entry, and that it was no part of the duty of decedent to inspect or to prop at that place. It further appeared that the rock which later fell on Shoulders was cracked and appeared to be a source of potential danger. Shoulders called that fact to the attention of Townsend, who was entry boss and in charge of the place where the accident happened. Townsend stated that he did not regard the place as dangerous until a slant adjacent thereto was cut through at which time they would timber it. He said further, however, for Shoulders to work in another place, and they would have the dangerous place timbered by the next morning. On the morning of the fatal accident Townsend directed Shoulders to go back to the entry where he had been working and clean it up. There is testimony to the effect that cleaning up the place meant to take down and load the coal that was loose, so that the cutters could continue their work. Shoulders, in obedience to that direction, went into the entry and put a small blast in some coal that was hanging. He went out of the range for the shot and awaited subsidence of the smoke; but, as he returned through the entry, he was caught in the fall and killed. The testimony for the plaintiff tended to show a breach of duty on the part of the defendants. Ky. St. § 2726--4; Elkhorn Coal Corp. v. Butler, 194 Ky. 183, 238 S.W. 372.

Whilst the defendant introduced testimony tending to show that the accident occurred substantially at the working place and that it was the duty of the decedent to protect the roof of his working place, that question was in issue and was properly submitted to the jury. Duncan Coal Co. v. Thompson, 157 Ky. 304, 162 S.W. 1139. It was the duty of the company to have its mine foreman or his assistant visit and examine the working places, as directed by the statute, and it was also their duty to see that every working place was properly secured, and to see that no person was directed to work in an unsafe place, unless for the purpose of making it safe. Elkhorn Coal Corp. v. Butler, supra. In this case Shoulders was not directed to work in the entry for the purpose of making it safe, but was directed to take out the coal at the head of the entry, and the duty of making the roof safe, as shown by plaintiff's evidence, rested upon the timber men especially provided and prepared for the purpose. Under the evidence for the plaintiff, the jury could fairly find that a duty owed Shoulders had been breached, resulting in his injury, and the burden of making out a case of primary negligence was sustained. The court did not err in refusing to grant a peremptory instruction. North East Coal Co. v. Setzer, 169 Ky. 245, 183 S.W. 553.

The next complaint is made regarding the first and third instructions, which were as follows:

"No. 1. The Court instructs you that it was the duty of the defendants, West Kentucky Coal Company and Mark Townsend, to use ordinary care to furnish a reasonably safe place for the decedent, George Shoulders, to do his work in, and that if you shall believe from all the evidence in this case that the defendants, or either of them, failed to use such care, and that by reason thereof the entry in defendant's mine at the place where said Shoulders was killed, was not in a reasonably safe condition, and that the unsafe condition, if it was unsafe, was known to the defendants, or either of them, or could have been known to them by the exercise of ordinary care, and that by reason of the unsafe condition of the said Shoulders' place of work, or where he was killed, if it was unsafe, rock, slate or other formations from the roof of said entry fell upon said Shoulders and killed him, when he was exercising ordinary care for his own safety, you should find your verdict for the plaintiff; but unless you do so believe you should find your verdict for the defendants.

You may find your verdict for either of the defendants and against the other defendants, or you may find your verdict for both the defendants.

No. 3. The Court instructs the jury that if you shall believe from all the evidence in this case that it was the duty of George Shoulders, under his employment, to inspect and make safe the roof of the entry where he was working and that fell upon and killed him, and that he did so inspect it and ascertained and knew of its unsafe condition, if it was unsafe, and failed to take steps to make said roof reasonably safe and that his death was directly and proximately caused thereby, then you should find your verdict for the defendant."

The first instruction was too favorable to the company, since it conditioned liability on the exercise of ordinary care on the part of Shoulders, which was equivalent to allowing the defense of contributory negligence, notwithstanding it was not available to the coal company. Cf. Bevis v. Vanceburg Telephone Co., 132 Ky. 385, 113 S.W. 811. The criticism of the instruction proceeds upon a misapprehension of its effect. It is said in brief that "the court told the jury as a matter of law that it was the duty of the company to furnish decedent a reasonably safe place in which to perform his labor." Such was the fact in the case of Eagle Coal Co. v. Patrick, 161 Ky. 333, 170 S.W 960, cited by appellant. But in this case the court imposed upon defendant only the duty to exercise ordinary care to maintain the entry in a reasonably safe condition. It conformed to the criterion declared by this court for the guidance of juries in such cases. Bell-Knox Coal Co. v. Gregory, 152 Ky. 415, 153 S.W. 465; Trosper Coal Co. v. Crawford, 152 Ky. 214, 153 S.W. 211. The third instruction directed the jury, as was necessary to conform to the defendant's theory of the case which found some support in the evidence, to find from the evidence whether it was the duty of decedent to inspect the roof and put up props, and, if it was, whether his own neglect in those respects was the sole cause of the accident, in which event the company would not be liable. It is complained that the first and third instructions are inconsistent, and that each should have referred to the other. The first instruction submitted the plaintiff's theory of the case, the third instruction submitted the defense, and the two instructions were not inconsistent. Each was based upon a different hypothesis. The one or the other applied accordingly as the jury found the facts from the conflicting evidence. It is the duty of the court upon proper request to submit to the jury all theories of the case legally warranted by the pleadings and the proof. Shafer v. Chesapeake & O. R. Co., 228 Ky. 219, 14 S.W.2d 780, and, when the instructions taken as a whole and considered together properly present the law applicable to the case, no valid objection can be made to them, Fullenwider v. Brawner, 224 Ky. 274, 6 S.W.2d 264. We find no merit in the complaint that the instructions were prejudicial to appellants. But on another trial the correction suggested should be made in the first...