161 Ky. 605 | Ky. Ct. App. | 1914
Opinion op the Court by
Reversing.
Ancil Disney was in the employment of the North Jellico Coal Company as a track man, and lost his life under the following circumstances: James Hart was the head track man. One evening, shortly before quitting time, Hart was told by the foreman that the track was spreading at the foot of Tango Hill, and he wanted him to go back after supper and put in new ties and draw the track to gauge, asking him if he could not get Ancil Disney to come back also. Hart saw Disney and told him what the foreman said, and Disney said, “All right.”
If Disney had taken the trouble to turn the trolley behind the motor, instead of running the motor with the trolley in front, the trouble could not have occurred; for, if the trolley had been behind, and had jumped the wire, no harm would have followed; but, when it was in front and jumped the wire, it was jammed against the roof of the mine, and this caused the pole to break and brought about Disney’s death. Danger so obvious was well known to the men who worked in the mine. The same trouble would have occurred with any motor under the circumstances. There was no defect in the motor. The sum of the case is, that Disney, who had operated several times the smaller motor, thought he was competent to manage the large motor, and undertook to operate it without putting the trolley behind and without any direction from Hart. Although Hart acquiesced in Disney’s operating the motor, both of them were violating the well-known rule of the mine, which forbade their using this motor for such purposes; but the proximate cause of Disney’s death was his operating the motor in the mine with the trolley in front. He created the danger himself, and his death was due wholly to a condition which he himself brought about.
We, therefore, conclude that the defendant is. not liable, and that the court should have instructed the jury peremptorily to find for the defendant.
Judgment reversed and cause remanded for further proceedings consistent herewith.