196 Ky. 592 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
Appellee and ¡plaintiff below, James Sumner, filed this action in the Whitley circuit court against appellant and defendant below, Gatliff Coal Company, seeking a judgment against it for damages sustained by plaintiff as the result -of an injury to one of his legs while he was working in the mine of defendant as a hostler or scraper to one who was cutting the coal with a punching machine and which injury, as alleged, was produced by the carelessness and negligence of defendant in failing to furnish him with a reasonably safe place to perform the work to which he had been assigned, and because of which a large rock fell upon his leg and severely crushed and bruised his ankle, permanently injuring and partially destroying the use of it, and also caused plaintiff much physical and mental pain.
The answer traversed the allegations of the petition and also contained a plea of contributory negligence. The reply denied the latter plea and in a second paragraph alleged that defendant was regularly engaged in the coal mining business and employed in its mine, and which was necessary to its operation, more than five employees, and it therefore came within the operation of our workmen’s compensation act; that it had not, up to and including the day of the accident, accepted the terms thereof, and that under the provisions' of section 4960 of the statutes, which is a ip-art of the act, the defenses of contributory negligence, assumed risk, and negligence of a fellow servant were neither of them available to defendant. Defendant moved to strike from the reply its second paragraph, but we do not find from the record that the motion was ever acted on, nor do we find any responsive pleading thereto, nor any order controverting its allegations.
A trial before a jury resulted in a verdict in favor of plaintiff for twenty-five hundred dollars ($2,500.00), upon which judgment was rendered, and which the court
Besides admitting in the pleading that the operations of defendant came within the provisions of the workmen’s compensation act and that it had not accepted them the evidence discloses no effort to deny those facts, which for the purposes of this appeal must be accepted as true. In the two very recent cases -of West Kentucky Coal Co. v. Smithers, 184 Ky. 211, and Lamberg v. Central Consumers Co., idem 284, it was held that none of the defenses named were available to a defendant coming within the purview of the workmen’s compensation act and who had not accepted its terms. But, it was furthermore held that before liability would arise against such a defendant, the burden was on plaintiff to show that his injury was the proximate result of some negligence on the part of the defendant. In other words, that the failure of defendant to accept the provisions of the act did not change the rule as to its liability, but only deprived it of the defenses above named. It follows, therefore, that if there is any testimony proving negligence -on the part of the defendant a recovery may be had, notwithstanding there may also be testimony tending to ¡prove contributory negligence on the part of plaintiff, or an assumption of risk by him. A proper solution of the question raised, therefore, will require a consideration -of the testimony heard upon the trial.
At the time of the injury, plaintiff and his co-laborer, Warfield, were working in mine entry number 10, which had been abandoned for some time and needed cleaning out and'rendering sáfe before mining operations, were resumed therein. Warfield operated a punching or cutting machine which worked with compressed air and by
The position is taken by counsel that if plaintiff knew ■of the unsafe condition of the rock and, notwithstanding, continued in his work, his act in doing so was the sole producing cause of his injury and he can not recover. In other words, it is contended, as we understand eoun
We are, however, inclined to classify his conduct, after possessing such knowledge, as an assumption of the risk. The line of demarcation between “contributory negligence” and “assumption of risk” is frequently hard to draw, and the opinions exhibit much confusion along that line. But, we need not, for the purposes of this case, enter into any analytical discussion of the two defenses or endeavor to differentiate them, since this court lias quite uniformly held that where a servant continues to work at a place which he knows to be dangerous his conduct in doing so is one of assumption of risk rather than contributory negligence on, his part. Whether the undertaking of the work and its continuation where it is inherently dangerous and an injury is sustained because of such inherent danger the assumption of risk could not be relied on as a defense in cases similar to this, we need not determine. A case illustrative of the one supposed would be an injury sustained by a servant who was sent into the mine for the very purpose of re
If, however, we should be mistaken in what we have said, appellant would not be entitled to reversal, since instruction number 1, given by the court required the jury to believe, before they could return a verdict for plaintiff, that he did not know of the dangerous condition which produced his injury and that he had not been notified of it by plaintiff, which in effect, though erroneously, gave defendant the benefit of its affirmative defense, notwithstanding the provisions of the statute, swpra.
It, therefore, results that the court properly overruled the motion for a new trial, and the judgment is affirmed.