125 Ky. 355 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
J. D. Abney was a laborer in tbe mine of the Big Hill Coal Company, and while- engaged there was killed by the falling of the roof of the mine. This suit was filed by his personal representative to recover for his death. The facts of the case are substantially these: Levi Reynolds, who was the father-in-law of Abney, was a miner, and had been employed for some time in the mine. It was usual for each miner to have with him a helper, known, as a “buddy. ’ ’ Reynolds’ buddy left-, and Reynolds took Abney in as his buddy. Abney had been in the mine only a day and a half when he was killed. The proof for the plaintiff was to the effect that Reynolds and Abney named the matter to the mine boss, and tbri+
The charge, in the petition, was that the room of the mine in which Abney was directed to work, and those adjacent thereto, were unsafe and dangerous because of ■ the failure of the defendant to properly brace or prop the roof overhead and its drawing the ribs between them. The answer denied the allegations of the petition, and pleaded contributory negligence on the part of the deceased. The proof showed that it was the dutv of the miners to prop the roof in the rooms where they worked as they took out the coal underneath; that the company furnished them the props, and it was. their duty to put the props up as they went along, taking out the coal so as to make the roof above them secure. It also showed that the props were in the room at the time Abney was killed, and had not been put up by the miners; that Abney was killed by the falling of the roof at a point where he and Reynolds had taken out the coal from beneath without putting up any props to hold the roof. The defendant proved that Abney had been warned of the danger, and had said he would put up .the props. There was also proof showing that Abney’s death
It would seem from the record that the court’s
At the conclusion of the evidence, the court gave the jury these instructions:
“(1) If you believe from the evidence that the deceased, Jonathan Abney, was employed a!s a miner by the defendant, or that he was put to work as such by Gibson, and that the place where he worked was unsafe by reason of the failure of the defendant to properly brace or prop the slate or roof overheard of the room, in which deceased was working, or the room adjacent tliereto> or by drawing the ribs- between same, and that said unsafe condition was known to the defendant, or could have been known to it by the exercise of ordinary care, and that by reason of said
“(2).If you believe from the evidence that the deceased was guilty of negligence in failing to sufficiently prop the place where he was working at the time of his death, and that he would not have received the injury except for such negligence, you will find for the defendant.
“ (3) If you find for the plaintiff, you will find for her such a sum in damages as you may believe from the evidence will fairly compensate her for the loss of the life, of her intestate, Jonathan Abney; and you may measure such damages by the ability of the deceased to earn money, taking into consideration his age, physical condition, and prospects of life as they appear in evidence, providing that the finding shall pot exceed $20,000. ’ ’
The master is only required to. furnish the servant a reasonably safe place to work, so far as it may be done by ordinary care; that is, the master must use ordinary care to make the place where the servant works reasonably safe. Instruction No. 1 improperly makes the master responsible if the place where the servant worked was unsafe. There are many businesses which are attended more or less with danger, and the rule announced in the instruction would often make the master absolutely a guarantor. Coal mining is, at best, a dangerous business. The master is only required to use ordinary care for the safety of the servant. In lieu of the words, “that the place where
By the second instruction the jury should have been told that if they believed from the evidence that the deceased or Reynolds failed to exercise ordinary care to prop the roof as the coal was taken out, and that but for this the injury would not have occurred, or if Abney knew the danger, or could have known it by ordinary care in the discharge of his duties, or if he failed to exercise ordinary care for his own safety, but for which he would not have been injured, then, in any of these events, they should find for the defendant.
In lieu of the third instruction, the court will, tell the jury that, if they find for the plaintiff, the measure
By another instruction the court will tell the jury that “ordinary care” is such care as a person of ordinary prudence would usually exercise under like circumstances, and that negligence is the want of ordinary care.
The other matters relied on will probably not occur on another trial, and so need not be noticed. On the return of the case to the circuit court, the plaintiff will be allowed to amend her petition, if she desires to do so.
Judgment reversed, and cause remanded for a new trial.
• Petition by appellant for extension of opinion overruled.