155 Ky. 825 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
Plaintiff, C. M. Trivett, while at work in the mines of the defendant, Interstate Coal Company, was struck hy a piece of falling slate and severely injured. In this action for damages he recovered a verdict and judgment of $1,750. The coal company appeals.
According to the evidence for the defendant, room 31 had been driven in about 150 feet from the fourth right entry. The width of this room across the face of the coal was about 25 feet. The permanent roof, that is the roof after the draw slate has been taken down, is called the “bad top.” They were driving on a narrow neck about eight feet wide. At the time of plaintiff’s injury this work had progressed about 18 feet. It was in this neck, and near the face of the coal he was mining, that plaintiff was injured by the falling draw slate. The
Section 2739b-7, Kentucky Statutes, is as follows:
“Each owner, lessee or operator of every mine to which the mining laws of the State apply, shall provide and furnish to the miners employed in said mine a sufficient number of caps and props, said props to be sawed square at each end, to be used by said miners in securing the roof in their rooms, and at such other working places where by law or custom of those usually engaged in such employment it is the duty of said miners to keep the roof propped, after the miner has selected and worked the same.”
There is practically no denial of the fact that plaintiff made a request for props. Plaintiff says that if he had had the props he could and would have propped the slate. Defendant contends that the duty of furnishing props applies only where it is necessary to use them to support the permanent roof of the mine, and not to a case of mere draw slate, which the evidence shows it was neither practicable nor customary to prop. We are not, however, disposed to give the statute such a narrow construction. The protection of the miner is the chief purpose of the statute. It may often happen that draw slate may be propped while the miner is engaged in getting out the coal. Where the miner’s request for props is not complied with, and the miner is injured, the question whether or not the failure to furnish the props was the proximate cause of his injuries will ordinarily be for the jury. In the present case plaintiff says that if the props had been furnished he could and would have propped the draw slate, and had he done so he would not have been injured. On the other hand, the evidence for the defendant is that it was neither customary nor prac
Nor can we say as a matter of law that plaintiff was guilty of contributory negligence. While he had had some experience in mines in West Virginia in other employments, he had never had any previous experience in defendant’s mine. At the time of his injury he was not 20 years of age. He says that the mine foreman assured him that the place where he was put to work was safe. He also says that he examined and tested the slate and there was nothing in its appearance to indicate that it would fall. Considering his lack of experience and the short time he had been at work, we cannot say that the danger from the draw slate was so obvious that a person of ordinary prudence would have refused to go on with the work.
After the suit was instituted defendant effected a compromise with plaintiff and his mother by paying him $100. By amended answer this compromise was pleaded. Plaintiff alleged that the compromise was obtained by fraud, and that he was an infant at the time it was made. His evidence is to the effect that a physician representing defendant told him that his attorneys had been bought up by the coal company and that the suit would be dismissed. There was also evidence tending to show that plaintiff, at the time of the alleged settlement, was an infant. Manifestly, the settlement was not valid if obtained by fraud, or if plaintiff was an infant when the settlement was made. This issue, we think, was properly submitted to the jury. Defendant, however, insists that plaintiff could not continue the prosecution of his suit because no proper tender of the amount paid him was made .to defendant. It does appear, however, that the attorneys for plaintiff gave their personal checks to the clerk of the court for the sum of $103.50, which represented the amount of the compromise, together with interest thereon. An order of the court recites this sum was paid into court. That the clerk accepted checks instead of cash is immaterial. So far as defendant was concerned, there was a payment of the money into court, and, therefore, a restoration of the amount of the compromise. We, therefore, conclude that the tender was sufficient to enable plaintiff to continue the prosecution of the suit.
The evidence fails to show that Hill, who at the instance and direction of defendant’s foreman employed plaintiff, was an independent contractor. Though paid by the ton, the defendant retained control over the manner and method of doing the work. Moreover, we have frequently held that the owner or operator of a mine cannot relieve himself of the duties imposed by statute for the protection of human life by entering into contracts with third parties to do the work at so much a ton. Interstate Coal Co. v. Baxavenie, 144 Ky., 172; Edwards’ Admr. v. Lam, 132 Ky., 32; Curbin v. Grimes, 132 Ky., 555. For a discussion of other questions raised, see Interstate Coal Co. v. Laura Trivett, 155 Ky., 795, this day decided.
Finding in the record no error prejudicial to the substantial rights of the defendant, it follows that the judgment should be affirmed, and it is so ordered.