173 Ky. 337 | Ky. Ct. App. | 1917
Opinion of the Court by
Reversing.
Mat Gray, a miner in the employ of the New Hughes Jellico Coal Company, was injured by falling slate andl brought this suit to recover damages. From a verdict and judgment in his favor for $1,000.00 the company appeals.
Plaintiff predicates his right of recovery on two grounds: (1) The failure of the company to furnish him a reasonably safe place to work by propping and timbering the roof of his working place; (2) the promise of the company to timber the roof, accompanied by an assurance of safety and a direction to plaintiff to continue his work'.
According to plaintiff’s evidence, he and his “bud-die” were engaged in “driving an air course” in the mine. The vein of coal was about five feet thick. A parting of slate from two to four inches thick ran horizontally through the middle of the vein, thus leaving a little over two feet of coal above the parting and about the same amount below. The coal above the parting is known as the “top bench;” that below as
According to the evidence for the company, it was the duty of the company to prop and timber in the air course behind the miners. It was no part of their duty to prop or timber between the lower bench and the roof. It was the duty of the men to remove the slate and look after the roof above the “bottom bench.” Alex. Jones, plaintiff’s “buddie,” says that at the time of plaintiff’s injury the “top bench” had been removed for a distance of six or seven feet, and plaintiff was on the “top bench” digging out the coal. This coal was removed the day before. Jones and the foreman further say that the piece of slate that fell on plaintiff was not the piece of slate that plaintiff and the foreman were talking about the day before. They and their witnesses say that the piece of slate near the “breakthrough” was still there and had never fallen. The slate that fell and struck plaintiff was lying right on top of the bench along the rib. The foreman says that plaintiff admitted to him on the day of the accident that the slate that they had talked about the day before was not the slate that fell on him. In rebuttal,- plaintiff denied making this statement but did not deny the fact.
On these facts the company contends that it was entitled to a peremptory instruction. One of two propositions is necessarily true. Either the slate which fell on plaintiff was or was not the slate which he and the foreman had discussed the day before. The decided weight of the evidence is to the effect that it was not. Indeed, nearly all of the witnesses say that the slate which plaintiff and the foreman discussed had never fallen. The slate which fell on plaintiff struck him while he was lying on the “bottom bench” and “about balanced oh his body. ’ ’ Indeed, plaintiff’s injuries were received on the upper part and not on the lower part of his body. If it be true, then, that the slate which injured plaintiff was- a different piece from that discussed by him and the foreman, it necessarily follows that the slate fell from the roof above the “bottom bench” and at a place where the company was under no duty to prop or timber. In other words, the danger was such as was created by plaintiff in the progress of his work, and the safe place, doctrine has no application. Music’s
On the other, hand, if the slate which fell on plaintiff was the slate discussed by him and the foreman, the question is, was plaintiff guilty of contributory negligence as a matter of law?
Plaintiff’s evidence does not show any assurance of safety. It merely shows a promise to timber, accompanied by a caution to- watch the slate. The rule is well established that where the servant complains of dangerous conditions under which he has to work, which are due to the master’s negligence, and the master has promised to remedy the same, the servant may, in reliance upon the promise, remain for a reasonable time in the employment without assuming the risk of, or depriving himself of the right to recover for, injuries received because of those conditions. This rule, however, is subject to the qualification that it does not apply where the risk incurred in remaining in the employment is so great and imminent that a reasonably prudent man would not incur it. In other words, the promise to remedy the conditions does not make the master an insurer of the safety of the premises for a reasonable length of time thereafter.
The servant must still exercise ordinary care for his own safety. Plence, if the servant exposes himself to dangers that are so threatening or obvious as likely to cause injury at any moment, he is, notwithstanding any promise of his employer, guilty of contributory negligence if he remain at the work. Roccia v. Black Diamond Coal Min. Co., 57 C. C. A. 567, 121 Fed. 451; Shemwell v. Owensboro & N. R. Co., 117 Ky. 556, 78 S. W. 448.
Ordinarily, of course, this question is for the jury, but cases may and do arise where ordinarily prudent men may deduce but one reasonable conclusion from the admitted facts, and in that event the question is one of law. Here the plaintiff admits that the roof was cracked and the piece of slate resembled a “horseback.” This piece of slate extended beyond and above the face of the coal. Before he and his “buddie” attempted to remove the coal beneath it, plaintiff' regarded the condition as sufficiently dangerous to request the foreman to timber it.
The trial court should have directed a verdict in favor of the defendant.
Judgment reversed and cause remanded for a new trial consistent with this opinion.