Wright v. Elkhorn Consolidation Coal & Coke Co.

• Decision Date: 10 December 1918
• Citation: 182 Ky. 423,206 S.W. 634
• Parties: WRIGHT v. ELKHORN CONSOLIDATION COAL & COKE CO. ET AL.
• Court: Kentucky Court of Appeals

206 S.W. 634

182 Ky. 423

WRIGHT v. ELKHORN CONSOLIDATION COAL & COKE CO. ET AL.

Court of Appeals of Kentucky.

December 10, 1918

Appeal from Circuit Court, Pike County.

Action by Samuel Wright, administrator, against the Elkhorn Consolidation Coal & Coke Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

O'Rear & Williams, of Frankfort, and James Clay, of Morehead, for appellant.

Ernest Woodward, of Louisville, and Roscoe Vanover, J. J. Moore, J S. Cline, Cline &

p>Page Steele, and Childers & Childers, all of Pikeville, for appellees.

THOMAS J.

Adam Wright, a young man who, according to the proof, was between 20 and 21 years of age, was employed by the appellee and defendant below, Elkhorn Consolidation Coal & Coke Company whose superintendent was Lon Rogers, and whose mine foreman was John Jones. The defendant corporation was engaged in mining coal. The mouth of its mine No. 2 was upon the side of a mountain, from which it let the coal down an incline to its tipple which was built in the gulch between two mountains. The deceased was called a "dumper," his duties being to receive the cars in the tipple after they came down the incline and to empty them and start the empty cars back to the mouth of the mine up an incline of another track provided for that purpose.

On November 13, 1915, at about 9 o'clock a. m., a car of coal broke loose near the top of the incline just over that part of it called the "knuckle," and it with its contents and the device provided for holding it, called a "barney," ran down the incline, striking the tipple with such force as to demolish a portion of it, and killing the deceased. His father, the appellant and plaintiff below qualified as his administrator and brought this suit in the court below against the corporate defendant, its superintendent, and its mine foreman, to recover damages which the estate of deceased sustained by reason of his death, fixed in the petition at the sum of $30,000.

The negligence charged is threefold, being: (1) The failure of the defendants to furnish deceased with a safe place in which to perform his work; (2) failure to furnish him with safe tools and appliances with which to do his work; and (3) that defendants failed to comply with the provisions of subsection 11 of section 2726 of the present Kentucky Statutes, which is an act of the Legislature passed at its 1914 session, and which says:

"The operator or superintendent shall direct and see that safety blocks, or some other device, are constructed for the purpose of preventing cars from failing into the shaft or slope, or running away on slopes and inclined planes; and safety switches, drop logs, or other devices, shall be used on all slopes and inclined planes; and the mine foreman shall see that said safety blocks, safety switches, or other devices are maintained in good working order."

The answer traversed all the acts of negligence charged, and affirmatively pleaded assumption of risk and contributory negligence, which, being denied, made the issues, and upon trial the jury after receiving instructions of the court and hearing the argument of counsel returned a verdict for the defendants, and to reverse it the plaintiff prosecutes this appeal.

The grounds upon which a new trial was asked in the court below seem to be almost a literal copy of those set out in section 340 of the Civil Code, but in this court the contentions of counsel representing appellant seem to be that the court erred in submitting to the jury the issue as to whether defendant had complied with the section of the statute, supra; that it erred in giving to the jury instructions A, B, and C on its own motion; that it erred in rejecting testimony offered by plaintiff; and that the verdict is not sustained by sufficient evidence. These several contentions will be considered and disposed of as we proceed with this opinion.

At this point a statement of what might be said to be the undisputed facts is appropriate. At some little distance from the mouth of the mine on the track over which the cars traveled carrying the coal to the tipple is that portion of the track called the "knuckle," which is described to be the point where the track enters what is called the "plane" or "incline," which in turn is explained to be the steepest part of the incline from the mouth of the mine to the tipple, and in this case was an on angle of about 30 or 33 degrees and about 350 feet long; the tipple being about 170 feet below the mouth of the mine. In mining parlance a "slope" is shown to be that portion of the track located within the mine, while an "incline" is that portion of it outside of the mine. The defendant company operated, lowered, and elevated the cars running over its incline with the use of a barney. This was a contrivance made of six pieces of sound timber each 10 inches square, bolted and fastened together so as to make a solid piece about 60 inches long, 20 inches wide, and 30 inches high, located upon wheels which were on square axles bedded flush with the bottom surface of the barney. A one-inch plow steel rope, consisting of 6 strands of 19 wires each, went through the barney diagonally, entering it from the bottom just behind the front axle and coming out near the rear end of the top, at which place it was fastened by a loop with two clamps, and the loop was held to the top surface of the barney by the use of nails. In operation the steel rope was manipulated by means of a drum located near the mouth of the mine. The tracks upon which the coal car ran were 42 inches wide, but within the rails of those tracks was another track 30 inches wide, upon which the barney ran, and this last-mentioned track, just before or about the time the entry of the tipple was reached, continued on an incline through what is called the "barney hole," so as to permit the barney to pass under and below the coal car track upon which the coal car would run into the tipple and be unloaded, when it would then be pushed over the barney hole so that the barney could come up behind it and take it up the incline to the mine. Between the mouth of the mine and the knuckle, there were located switches which were automatically operated by the barney as it approached the knuckle at the top of the incline. In other words, with the use of these switches no loaded car could pass over the knuckle without the barney being there to receive it. The tracks on the incline were upon the surface and were filled in between the ties, which the evidence shows was necessary to hold them in place, and the steel rope ran loose upon the track. It had been purchased about the first of the year in which the accident occurred, and is shown to have been of the very best make and material. Its vertical lifting strength was about 250,000 pounds, and its safe operating strength was as much as 75,000 pounds; but at the time it broke it was carrying only 4,500 pounds, being the weight of the coal, coal car, and barney on the angle of the incline about 30 or 33 degrees, which, according to the testimony, would be equal to about 1,500 pounds on a vertical lift. The breaking of the rope occurred within the barney, between 6 and 12 inches from the loop at the rear end of its top surface.

Turning now to the contentions made by plaintiff on this hearing, it is insisted by his counsel that the facts as just related do not furnish a compliance with the provisions of the section of the statute, supra, while the contrary is insisted upon by defendants. The statute, in substance, prescribes that the operator or superintendent shall provide safety blocks "or other device" to prevent the cars from running away on the inclined planes, and that safety switches, drop logs, or other devices shall be used on all inclined planes, and that it shall be the duty of the mine foreman to see that such named devices, or others, are properly maintained in good working order. There is nothing in the statute requiring that any of the devices named, or others which might be found proper for the purpose, shall be installed at any particular point on the inclined plane, but only that they shall be so constructed as to prevent (not absolutely, but as far as possible) the running away of the cars on the inclined plane.

Plaintiff insists that, either some of the devices mentioned, or others mentioned by some of plaintiff's witnesses, should have been provided so as to stop the runaway car while on the steep part of the inclined plane, and he insists that such was the intention of the statute and that the barney does not comply with the requirements thereof. To this end it is contended by plaintiff that...