157 Ky. 304 | Ky. Ct. App. | 1914
Opinion op the Court by
Reversing.
Thompson, who was 46 years of age, had been working as a miner for about two years. A contract made by the United Mine Workers of America with the Employers’ Association, of which the coal company was a member, was introduced in evidence without objection from either side. Section 9 of that contract provides: “The company shall lay all roads and timber all ‘bad places’ not caused by the miner’s negligence.” The evidence of plaintiff tends to show that the roof of the room where he was- at work was “crumbly” and full of seams, and on this account it could not be made reasonably safe by ordinary propping. On the other hand the evidence for the defendant is to the effect that the roof was not bad and could have been rendered reasonably safe had it been properly propped by the decedent. It was also shown that a few hours before decedent’s death, which was caused by the falling of slate, decedent had been cautioned by the mine foreman and assistant mine foreman in regard to the condition of the room, and had been told to prop it. Defendant also proved that it was plaintiff’s duty to prop within ten feet of the face of the coal, and that none of the props had been set by him within that distance. On these two points plaintiff proved that a prop was found on top of the fallen slate, which indicated by its appearance that it had been set by the decedent, and that props could not be set nearer the face of the coal on account of a “break-through.”
Defendant insists that the court erred in failing to give a peremptory, in view of the evidence that decedent had been warned of the dangerous condition of the roof and had been told to prop it, and that he failed to prop it within the required distance. On the issue, however, as to whether or not it was the duty of the decedent to prop, or of the defendant to timber, the evidence is conflicting. If the condition of the roof was such that it was the duty of the decedent to prop it, there can be no recovery. On the other hand, if the roof was in such condition that it was the duty of the company to timber, and
Instruction No. 1 is as follows:
“The court instructs the jury that if they believe from the evidence that the roof in the defendant company’s mine and the place where the same fell on deceased was a ‘bad place’ within the meaning of the contract between the parties, which was read in evidence to the jury, and that by reason thereof said room where decased was killed was not a reasonably safe place for deceased to work in and that the defendant company or its agents superior in authority to the intestate knew of said unsafe or defective condition, if any, before the deceased was killed and that the deceased did not know, and by the use of ordinary care could not have known thereof, and that the deceased was killed by slate or rock from the roof of said mine falling on him, then and in that event the jury will find for the plaintiff.”
This instruction is erroneous because, without giving them any guide for their direction, it leaves to the jury the determination of the question whether or not the roof was a “bad place” within the meaning of. the contract between the parties. The court should have defined a “bad place” within the meaning of the contract.
In view of the fact that there was no evidence tending to show that the condition of the roof was caused by decedent’s negligence, the court, on another trial, in addition to the usual instructions on contributory negligence and the measure of damages, and the usual instructions defining ordinary care and negligence, will instruct the jury as follows:
1. A “bad place” within the meaning of the contract is a place in the roof which cannot be made reasonably safe by the ordinary propping usually done by the miner himself.
- An ordinary roof is a roof that can be made reasonably safe by the ordinary propping usually done by tbe miner himself.
3. If you believe from the evidence that the roof in question was an ordinary roof within the meaning of instruction No. 1, and that decedent failed to prop same, and by reason thereof was injured, you will find for the defendant.
Counsel for defendant further complain of the action of the trial court in permitting plaintiff’s attorney to ask the jurymen whether any of' them owned any stock in the insurance company which carried the indemnity policy on defendant’s mine. When the objection was made the attorney for plaintiff stated that he had been informed that the coal company carried insurance in a company that would pay any loss that might result to defendant on the trial of the case. The court overruled the objection on the ground that it came after the jury had qualified, and the list had been passed on and accepted by both parties, and it was, therefore, too late. We have recognized the propriety of such a question where counsel for plaintiff has information that the defendant has indemnity insurance, and that some member of the jury is interested in the insurance company, and the question is asked in good faith. Dow Wire Works Co. v. Morgan, 96 S. W., 530; Owensboro Wagon Co. v. Boling, 107 S. W., 264. This privilege, however, is not only liable to abuse, but is frequently abused. While the question is asked ostensibly for the purpose of determining the bias or interest of the juror, in a great majority of eases the sole purpose of such a question is to bring to the attention of the jurors the fact that any verdict they may render will impose no liability on the defendant, but will be paid by some one else. No
Judgment reversed and cause remanded for new trial consistent with this opinion.