Williams Coal Co. v. Cooper
| Decision Date | 06 May 1910 |
| Citation | 138 Ky. 287 |
| Parties | Williams Coal Co. v. Cooper. |
| Court | Kentucky Court of Appeals |
Appeal from Ohio Circuit Court.
From a judgment for plaintiff, defendant appeals. — Affirmed.
GLENN & SIMMERMAN and W. T. ELLIS for appellant.
M. L. HEAVRIN, BEN D. RINGO and ERNEST M. WOODWARD for appellee.
This action was instituted by appellee to recover damages against the appellant company for injuries received by slate falling from the roof while working as a machine operator in its coal mine. He was an experienced miner, and had been engaged in the special service he was performing when injured for some months. His duties were to run a machine operated by compressed air and used in cutting an excavation in the face of the coal near the bottom of the room; the excavation running back some six or eight feet. After the coal had been thus cut, "loaders" would shoot down the coal by blasts and load the same on cars in which it was removed from the mine. Cooper's duties required him to do the cutting with this machine in several rooms in the mine — his work in each room usually requiring about 90 minutes. When he had finished cutting in one room, the machine, which weighed about 750 pounds, would be rolled into another room; and so on, until all of the rooms were cut. In the performance of this labor he did not receive or require special directions as to which room he should cut; it being understood that he would go into the rooms in the order in which the cutting was needed for the purpose of keeping the "loaders" who were engaged in shooting and hauling out the coal occupied. After the coal was cut and shot down and removed from the room, it was the duty of the "loaders" to prop the roof of the room with props furnished by the mineowner, to protect the roof from falling, and make it safe for occupancy by the cutter or machine man, who had nothing to do with propping or protecting the roof. After each cutting, shooting, and hauling out, the props would be advanced to within 10 or 12 feet of the face of the unmined coal, unless the roof was bad. If it was bad, the props would be placed closer to the face of the unmined coal. In other words, the idea was to regulate the location of the props by the condition of the roof of the mine, and to use as many props and in such places as the conditions seemed to demand. If the roof was regarded as safe, then the props were placed 10 or 12 feet from the face of the unmined coal, and the machine when engaged in cutting would be located between the props and the unmined coal. If the props were placed closer than this to the face of the coal, the machine would be so located as to cut between them, as it could not be operated between the props and the face of the coal unless the distance was some 10 or 12 feet. At the time Cooper was injured, the props in the room in which he was working were about 12 feet from the face of the coal, and Cooper and his machine were between the props and the coal he was cutting. The petition charged that "the duties of plaintiff required that he give his constant attention to the operation of his machine, and he was not chargeable with any duty of propping, inspecting, or otherwise safeguarding the roof or top of the mine, and that while he was employed as aforesaid, and acting within the scope of his employment, and in the observance of ordinary care for his own safety, in a room of the defendant's mine, which room and adjacent portion of its mine the defendant had wrongfully and negligently suffered and permitted the room in which Cooper was injured to be and remain in a dangerous and unsafe condition for more than 10 days prior thereto, which dangerous and unsafe condition resulted from and was caused by loose slate, shale, and rocks being suffered and permitted to remain in the roof, which loose shale, rocks, and slate ought to have been taken down and out of the roof by the defendant, or have been secured by props, and which loose, dangerous, and unsafe condition of the slate, shale, and rocks were known to the defendant, or might have been known to it by the exercise of ordinary care, but which was unknown to the plaintiff, who could not discover the same by the exercise of ordinary care in the discharge of the duties of his employment." The answer was a traverse and plea of contributory negligence, and the trial resulted in a judgment for $9,500.
The substantial errors assigned are (1) that the motion for a peremptory instruction should have been sustained; (2) that appellee was not ordered or directed to go into the room where the injury occurred, and hence assumed the risk; (3) that the court misinstructed the jury; and (4) that the attorney for appellee in his closing argument was guilty of improper conduct.
We do not think it worth while to take much time discussing the propositions that Cooper was not ordered or directed to work in the room where the injury occurred, or told that it was ready for him. The evidence is virtually undisputed that it was Cooper's duty to cut the coal in some 15 rooms, and that he was never directed to go into any particular room. His general instructions were to cut the coal in the rooms as the cutting was needed, and this practice he had been following without interference, objection, or instruction for some six months before he was injured. He was not directed to go into the room in which he was injured, nor was he directed not to go into it. No instructions upon the subject were necessary. He went into the room in the usual course of his employment, and according to his regular custom. He was not informed that the room was ready for him, nor was he told that it was not; nor was it necessary that he should have any special information upon this point, unless the room had not been made ready for his reception by the "loaders." The coal had been removed from the room, the "loaders" had propped it, and in the ordinary course of Cooper's employment without notice to the contrary it was ready for him.
The argument that the jury should have been directed to return a verdict for the company is put upon the ground that the company was under no duty to furnish Cooper a safe place, or, if it was, that it did so; and, further, that it was his duty to see that the room was properly protected before working in it. The case for Cooper was predicated upon the proposition that it was the duty of the company to furnish him a reasonably safe place in which to work, and, unless this duty was imposed upon the company, there can be no recovery on account of the failure to keep the place reasonably safe. In support of the theory that it was not the duty of the company to furnish a safe place, the argument is made that, as the conditions in the room were constantly changing by virtue of the excavation and removal of the coal, it was not practicable to furnish a safe place for Cooper to work in, and so the law imposing upon the master the duty of furnishing the servant a reasonably safe place does not apply. It is true that the shape and dimensions of the rooms in which Cooper worked with his machine were constantly changing, as the coal was mined. They were necessarily enlarged as well as altered in appearance by the excavation of the coal. It also seems likely, and we may so assume, that, as the size of the rooms increased, the danger from defective conditions in the roof became greater. But these changes constantly going on in all coal mines do not relieve the master from the duty of keeping the mine reasonably safe for those not charged with the duty of inspecting or examining for themselves to ascertain whether or not the place in which they work is safe. In mining, as well as many other occupations, there are persons whose duty it is to examine and provide for the safety of the places in which other servants are to work. There are servants who prepare the places and servants who work in these places after they have been prepared. As to the servants engaged in the work of preparation, and who are employed to make places safe for other servants, the doctrine of safe places does not apply. The master should not in reason be required to make the places safe for those he has employed to put them in a safe condition. Ballard & Ballard Co. v. Lee, 131 Ky. 412; Mowrey v. Frazier, 120 S. W. 289. But, as to those servants not charged with the duty of preparation examination, or inspection, and who have the right to and do depend upon the master performing this service through the agency of other servants, and who are only required to go into places after they should have been made reasonably safe, there is no good reason why the rule of safe place should not be applied. Nor is there any reason why mineowners should be exempt from the operation of this rule, or why miners should be subjected to hazards and risks greater than those assumed by other servants.
But it is insisted that Cooper himself was engaged in making the place unsafe. That he was as much a party to the operations by which the enlargement of the roof space increased the danger of falling slate as were the "loaders" and persons who took out the coal after it was blasted. It is true that Cooper performed a...
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