168 Ky. 385 | Ky. Ct. App. | 1916
Opiriopt op the Court by
— Reversing in part, affirming in part.
On January 9, 1914, Marion Bryant was injured by slate falling -from tbe roof of tbe mine owned by tbe •Imperial Jellico Coal Company, but being operated under a lease by tbe Bank Coal Company, in wbicb said Bryant was engaged in removing tbe stumps and pillars left to support tbe roof when tbe mine was developed, wbicb work is known as “robbing” tbe mine. Thereafter be instituted tbis suit in tbe Whitley Circuit Court seeking to recover for bis injuries from both of said companies, alleging that tbe accident resulted from tbe negligence of said companies, and each of them, in failing to furnish him a safe place in wbicb to do said work, and in failing to furnish him tbe necessary and proper kind of props to support tbe roof of tbe mine as required by law.
■The two companies ,filed a joint answer denying the allegations of negligence in his petition and pleading contributory negligence. Tbe affirmative allegations of said answer were traversed of record, and a trial by a jury resulted in a verdict and judgment for him against tbe Imperial Jellico Coal Company for $1,000, and a verdict and judgment against him in favor of the Bank Coal Company. Tbe Imperial Jellico Coal Company is appealing from tbe judgment against it and be is appealing from tbe judgment in favor of tbe Bank Coal Com
Appellant, Imperial Jellico Coal Company, is relying upon the following grounds for a reversal of the judgment against it: (1) That the court erred in not sustaining the challenge of the jury panel tendered it by the trial court, upon which panel there were conceded to be seven bystanders who had been summoned at one and the same time by the sheriff; (2) that the trial court erred in overruling its motion for a peremptory instruc-' tion at the close of all the evidence.
To decide the question raised by the other ground assigned ás a reason for reversal of the judgment against said company would necessitate an expression of opinion upon the evidence, and in view of the fact that another trial may be necessary, we deem it advisable only to make such reference to said other alleged error as may conduce to a correct trial upon the return of the. case, without expressing an opinion about the evidence.
. Hence the petition did not state a cause of action against this appellant if it did not state that appellant knew of this latent defect, but stated rather that it knew or could have known of it by the exercise of ordinary care. If appellant actually knew of it, it would be liable, but if it did not know of it, but could have known of it by the exercise of ordinary care, it was not liable.
The same objection applies to the instructions given by the court as they allowed a recovery if the jury believed from the evidence that appellant could have discovered the alleged latent defect by the exercise of ordinary care.
Louisville H. & St. L. Ry. Co. v. Roberts, 144 Ky., 820; East Tenn. Telephone Co. v. Cook, 155 Ky., 649.
Nor can said appellant be granted a reversal because of the improperly selected jury panel since he did not object thereto.
"Wherefore, the judgment herein against appellant, Imperial Jellico Coal Company, is reversed, and the cause remanded, with directions to grant it a new trial. The judgment in favor of appellee, Bank Coal Company, is affirmed.