159 Ky. 481 | Ky. Ct. App. | 1914
Opinion op the Court by
Affirming.
The appellant, Elliott, as plaintiff below, brought this suit against the appellee coal company to recover damages for personal injuries sustained on account of its alleged failure to exercise ordinary care to furnish him a reasonably safe place in which to go to and from a place in its mine in which he was working, averring that as a result of this breach of duty he was injured by the
On the conclusion of the evidence for the plaintiff, the trial court directed a verdict for the defendant company, and the only question before us is the correctness of this ruling. The only evidence in the record that we need notice is that of the plaintiff and George Clements.
The plaintiff, in his own behalf, testified as follows: “I was shooting coal, and I lighted my shot and started out down the entry, and a piece of slate fell and struck me on my arm and on my leg and cut me. Q. What room had you been working in that day? A. 17 and 16. Q. On what entry? A. Third east entry. Q. And where were you when this slate fell? A. My best recollection down there somewhere between 6 and 7. Q. On what entry? A. Third east. Q. Where were you going? A. Going outside. Q. Was that the usual way to go from room 16 and 17 to the outside? A. Yes, sir. Q. Was that entry used for that purpose? A. Yes, sir. Q. Who used the entry for that purpose? A. Everybody that worked in that entry. Q. Did you know anything about the condition of the roof in that entry? A. I knowed it was always falling, and had been falling. Q. You knew stuff had been falling from the roof? A. Yes, sir. Q. Did you know the condition of the roof where this fall occurred that day? A. No, sir. Q. Who looks after the roof of that entry? A. They have timber and slate men supposed to look after that. Q. Have a boss with that crew? A. Yes, sir. Q. Who is the boss down there? A. I think it is Mr. Olden. Q. Did you see him there anywhere that day? A. No, sir. Q. You know whether he inspected the roof of that entry that day? A. No, sir; I do not. Q. How were you standing at the time this slate fell upon you? A. I was walking with my hands behind me and I stooped over kinder like I always do. Q. How come you to stoop over? A. It was low and I had to stoop over. Q. Is the roof sufficiently high to stand straight and walk out? A. Some places it is and some it is not. Q. At that particular point? A. Pretty bad roof. Q. How high was the roof above you at that place ? A. I don’e know; looked like two or three feet. Q. You mean that point was two or three feet higher than the rest of the entry along there? A. Yes, sir. Q. Why was that so? A. Because it had fallen there on the 8th and they had not
George Clements testified: “Had you seen him just before he got hurt? A. Yes, sir; left him at the head of the 3rd East entry. Q. That about room 16 or 17? No, sir; farther up. Q. What direction was he going when you left him? A. He had started out. Q. Going outside from where you left him, would he go along 3rd East entry going out? A. Yes, sir. Q. That is the usual and direct route to go ? A. Yes, sir. Q. Did you pass along that entry between rooms 6 and 7 along there next day? A. Yes, sir; went by there that evening. Q. When did you next go by there? A. I suppose next morning. Q. State whether or not there was a bad place along that entry about 6 or 7? A. Yes, sir. Q. In passing there that evening or next morning, did you find any evidence of slate having fallen? A. Of course slate was down there, but it had been falling before that. Q. You saw slate down there next morning? A. Yes, sir. Q. Whose duty was it to look after the roof of that
This evidence shows beyond doubt the existence of two things: First, that the roof of the entry where plaintiff was injured was unsafe and dangerous, and, second, that the plaintiff knew its condition before he was injured. It further appears that an outlet from the mines was furnished by an entry other than the one with the defective roof, and that if plaintiff had gone out through this entry he could have escaped the danger attending passage through the entry with the defective room. *
Under these facts we find, as a matter of law (1) that the defendant company was negligent in failing to keep the roof of the entry, in which the plaintiff was injured, in a reasonably safe condition, but that this negligence was not the direct or proximate cause of the plaintiff’s injury; (2) that the plaintiff had two ways by which' he could go out of the mine — one a safe way and the other a dangerous way, and that he voluntarily selected the dangerous way, and therefore he cannot recover damages for the injuries he sustained. It has been written in numbers of cases that where there is open to a servant the selection of a safe and an unsafe way of using implements or premises, and with knowledge of the conditions, he voluntarily and knowingly selects the unsafe way, he takes the risk of any accident that may happen to him.
The judgment is affirmed.