203 Ky. 804 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
Appellee, James Kerr,-sued appellant, Elkhorn Coal Corporation, to recover $3,000.00 damages for injuries received by him while an employee of it, engaged in loading coal in one of its coal mines. He claimed by his petition that while so at work he was seriously and permanently injured by breathing foul and impure air and poisonous and noxious gases which appellant had negligently permitted to accumulate and remain in its mine. Appellant denied the negligence charged, and by a second paragraph pleaded that its mine was skillfully operated and equipped with appliances for ventilation in strict compliance with the statutes applicable thereto, and that the injury, of which appellee complained, was merely one of the ordinary risks incident to and which he assumed when he accepted the employment. By a third paragraph it pleaded that it was operating under the provisions of the workmen’s compensation law of Kentucky; that the plaintiff had accepted its provisions when he entered their employ; and that these facts barred appellee’s right to recover in an action at law. Appellee demurred to the second and third paragraphs of appellant’s answer and, without waiving it, by reply traversed their averments, and pleaded affirmatively that his injury was not within the purview of the Workmen’s Compensation Act. By an amended answer, appellant pleaded that appellee’s injury was caused by his own contributory negligence. An agreed order was entered controverting of record the affirmative allegations of the amended answer and reply. The court below sustained the demurrer to the third paragraph of appellant’s answer. The jury awarded appellee a verdict of $750.00, on which the court duly entered judgment, and appellant’s motion and grounds for a new trial having been overruled, it prosecutes this appeal.
“It will be observed that all of these definitions of ‘trauma’ and ‘traumatic’ imply the presence of physical force, and this is the generally accepted meaning of the word. , Evidently the act implies that some external physical force actually directed against the body must occur in order to constitute traumatic injury by accident. ’ ’
And:
“We, therefore, conclude that diseases of an employe, contracted in the course of his employment and arising out of it, occasioned by negligence of the employer and not caused by traumatic injury are not compensable under the act, but that for ' such ‘.diseases he may have an action at common law. Further, that as the board of compensation had no jur*807 is diction of the. claim, a proceeding in that tribunal did not bar an actiqn;at law, arid the court did not err in so holding.'” ’ ■ ’
We may add with reference to the facts, of that case that the injury complained .of was one resulting from breathing impure air and poisonous gases in a mine. In the light of the construction placed upon the Kentucky Workmen’s Compensation Act, in the case above, the position of appellant is not well taken that, the injpry sued for herein is, .one compensable under it and that, therefore, the court below erred in not awarding it a peremptory at the conclusion of the evidence. On the other hand, the court properly sustained the demurrer to that paragraph of appellant’s answer and properly overruled its motion for a peremptory.
Appellant takes the position that the verdict is flagrantly against the evidence, -because -it establishes ■ that appellee’s earning capacity has not been impaired; that the mine was- properly ventilated 'at appellee’s place of work; and that his illness was. but a recurrence pf a chronic bronchitis or mine asthma, and not the result ori its negligence. Appellee testified positively that -as a result of the injury received by him from breathing the foul air and poisonous gases in the mine he. has been permanently injured.and that since the injury he has not been able to work exceeding half a day at a time. Dr. W. M. Wickers, mine physician for appellant, on cross-examination,- admitted that permanent injury might result to a person breathing impure air and noxious gases in a mine by injuring the lining of the lungs, the mucous membrane, and poisoning the-system. Dr. Sturgill, appellant’s assistant mine physician, .would not commit himself on the question as to whether or not breathing impure air and noxious gases in a mine might result in permanent injury to a person. Neither of these doctors —and they both had treated appellee, the former previously and the latter on the occasion in question, and were both introduced as witnesses by appellant — testified as to whether or not appellee’s condition, following his collapse in appellant’s mine, would or did result in permanent injury to him. It. appears from the testimony that appellee collapsed in appellant’s mine in January, 1920, about ten o’clock in the morriing. .He was' carried out of the mine on one ot‘ the coal cars and from the mouth of the mine it seems' he walked to his home.
It is true that the evidence established that appellee made nearly twice as much money in the year 1920, after receiving the injury complained of, as he did in any of the three previous years. But it is also true that in 1920 the evidence disclosed that appellee received more money for the same character of work and the mines- were in operation a much greater part of the time than they were in the previous years. Appellee testified that in making what he did in the year 1920 he was not able to work exceeding half of a day at any time. His testimony that he was unable to work more than half of any day was not contradicted by any witness.
Judgment affirmed.