West Kentucky Coal Co. v. Smithers

• Decision Date: 09 May 1919
• Citation: 211 S.W. 580,184 Ky. 211
• Parties: WEST KENTUCKY COAL CO. v. SMITHERS.
• Court: Kentucky Court of Appeals

211 S.W. 580

184 Ky. 211

WEST KENTUCKY COAL CO. v. SMITHERS.

Court of Appeals of Kentucky.

May 9, 1919

Appeal from Circuit Court, Union County.

Action by Ed Smithers against the West Kentucky Coal Company. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded for new trial consistent with the opinion.

Allen Harris & Allen, of Morganfield, and P. H. Winston, of Sturgis, for appellant.

Drury &amp Drury, G. E. Jones, W. T. Drury, and G. L. Drury, all of Morganfield, for appellee.

CLAY C.

In this action for damages for personal injuries, plaintiff, Ed Smithers, recovered of the defendant, West Kentucky Coal Company, a verdict and judgment for $1,297.50. The defendant appeals.

The defendant operates certain coal mines in Union county. Plaintiff was employed as a track layer in mine No. 8. The work in the mines was discontinued about noon on the day of the accident, for the purpose of giving the employés an opportunity to attend a circus. For the purpose of getting out of the mine, plaintiff got on a loaded coal car drawn by a mule and took a seat by the driver. While en route, a string of empty cars that had been placed on the lieway ran downgrade, because the brakes that had been set were not sufficient to hold them, and collided with the car on which plaintiff was riding. Both the mule and the driver avoided the danger, but plaintiff was thrown from the car and injured.

It further appears that pursuant to the authority of subsection 1, § 2738b, Kentucky Statutes, the defendant had adopted certain special rules for the government and operation of its mines, which rules were approved in writing by the chief inspector of mines, and duly posted in certain conspicuous places about the mine in which plaintiff was employed. Rule 5 provides:

"No employés except those connected with the operation of the motor or trip, will be allowed to ride on the locomotive or trip of loaded cars, and all others are strictly forbidden to get off or on any motor trip while the same is in motion. Motormen must not allow any one to ride on the motor or cars except by the express permission of the foreman."

There was some evidence that this rule was habitually disregarded with the knowledge and acquiescence of those in charge of the mine.

The petition charged that plaintiff's injuries were caused by negligence of the defendant, its agents and servants. In its answer, the defendant denied negligence and charged that plaintiff's injuries were caused solely by his own negligence and willful misconduct.

It is admitted that the defendant had not elected to operate under the Workmen's Compensation Act at the time of the accident, and cannot, therefore, defend on the usual grounds of contributory negligence, negligence of a fellow servant and assumption of risk. Section 4960, vol. 3, Kentucky Statutes.

In its instructions to the jury, the court assumed that plaintiff, in riding on the loaded car, was in a place where he had a right to be, and told the jury, in substance, that the defendant was under the duty to use reasonable care in placing its empty cars so that they would not run down the incline, and that if it failed to use such care, and by reason thereof plaintiff was injured, they should find for plaintiff.

Defendant contends that the rule above quoted forbade plaintiff from riding on the loaded car, and that his violation of this rule was such willful misconduct on his part as to prevent a recovery. On the other hand, plaintiff contends that the rule in question was not applicable; and, furthermore, that even if it was applicable, his violation thereof constituted contributory negligence, a defense cut off by the statute. Of course, the construction of the rule in question is for the court, and, while it should be construed so as to carry out the purpose of its adoption, its scope should not be extended to include cases not embraced in the language employed. While the company might have adopted a rule forbidding employés, whose work was not connected with the operation of cars, from getting on all loaded cars, whether transported by a motor or otherwise, an examination of the language employed shows that it is not sufficiently broad for that purpose. Evidently that company regarded the riding on the motor or on cars drawn by a motor as especially dangerous, and the rule was adopted to meet this condition. In the first place, the rule applies to all employés "except those connected with the operation of the motor or trip." Such employés are forbidden "to ride on locomotive or trip of loaded cars." Not only so, but the rule provides that--

"All others are strictly forbidden to get off or on any motor trip, while the same is in motion."

Even this is not all. The rule goes further and provides that--

"Motormen must not allow any one to ride on the motor or...