135 Ky. 834 | Ky. Ct. App. | 1909
Lead Opinion
Opinion of the Court, by
Overruling.
When this case was pending before us on appeal, the transcript was read by five of the seven judges, and the case most thoroughly discussed on several occasions in consultation before the opinion was rendered, after which a majority of the-court reached the conclusion that the judgment awarding a peremptory instruction to the jury to find for the defendant should be affirmed.
On the petition for a rehearing the transcript has been re-read by two of the judges, and all of the material parts of the evidence read in consultation to the whole court, and we have again thoroughly discussed and considered the question involved; we still think the original opinion contains a correct
The petition for rehearing is therefore overruled.
Dissenting Opinion
Dissenting Opinion by
The facts as stated in the opinion delivered do not agree with my construction of them. Therefore it is necessary for me to state my reasons for dissenting. A misunderstanding by the court of the facts as they appear in the record is the only way that I can account for the result.
In considering this case, it should be kept in mind that the court was not asked to reverse a judgment based upon a verdict of a properly instructed jury, but its duty, and only duty, was to carefully examine the record, and ascertain, first, whether appellant stated in his pleadings a cause of action; if so, then to determine whether he introduced any or a scintilla of testimony sustaining his alleged cause of action. If it was found that he had complied with these requirements, he was entitled to have his case submitted to the jury. All the decisions of this court on the question sustain the proposition. If appellant in-^ troduced any testimony supporting his alleged cause of action, it is then the duty of this court to reverse the action of the lower court in giving the peremptory instruction. It was a violation of the lower court’s lawful duty to usurp the functions of the jury in weighing the evidence and deciding the case as it thought the evidence warranted. The Constitution of the state guarantees to persons the right of trial by jury, and, when a court takes this right from a person, it usurps its power. It is not contended that appellant failed to state a cause of action in his pleadings. Therefore the only question to be con
There were ten witnesses introduced, only seven of whom gave testimony upon the question involved. The other three were-the widow, the administrator, and the physician who attended him by whom the extent of Smith’s injuries and the cause of his death were shown. It is conceded that the law required appellee to furnish Smith a reasonably safe place in which to perform his work, and to use reasonable care to keep it reasonably safe for that purpose. This is a general rule of law that cannot be successfully controverted. The term “reasonably safe place ’ ’ must be construed in connection with the work to be performed. There cannot be found in a coal mine, powder house, or similar places a safe place to labor. The meaning of the phrase is that the master must use due care, considering the place where the work is to be done, in making the place reasonably safe and in keeping it so. If the character of the work is unusually dangerous, there then arises the necessity of more care on the part of the master to provide and keep a reasonably safe place for the protection of the employe, and more care is also required on the part of the employe to save himself from injury.
The following quotation from the case of Pfisterer v. Peter & Co., 117 Ky. 501, 78 S. W. 450, 25 Ky. Law Rep. 1605, emphasizes this principle, to-wit:
“A master employing a servant impliedly engages with him that the place in which he is to work and
I will now proceed to show from the record that appellee did not furnish Smith a reasonably safe place to work, or use any care whatever to put and keep it in a reasonably safe condition. James Woodward, the helper of Smith at the time he received his injuries, in speaking of the place where Smith was killed, testified as follows: “Q. Now, tell the jury if there was a hill seam there, and, if there was, where it ran with reference to the entry? A. Yes; there
George Owens, with reference to the same subject, testified as follows: “ Q. Describe the condition at the top of that mine where the room neck was turned off where Smith was hurt? A. I don’t know whether the room was cut the last time I was in there before he was hurt. There was loose slate hanging in places. It is called a bad entry. ’ ’
Henry Davidson testified as follows: “Q. Tell the jury if you know what was the condition of that top. A. It was a pretty bad top. Q. What is a bad top? A. Loose, bad top. Q1. Is there such a thing as á rotten top? A. Yes, sir. Q. Tell the jury whether or not this was rotten? A. Yes, it was rotten. Q. Did you notice any hill seam there? A. Yes. Q. Explain to the jury. If they weakened the top, how they do it? A. It runs ’in on the rib and weakens one side of it. Q. State whether or not the slate is more liable to fall where there is a hill seam than where there is none? A. Yes, sir. Q. What ought to be done to make it safe in case of a hill seam? A. It ought to be timbered to make it safe.”
Witness Owens said: “Q. In cutting that entry, Smith had nothing to do about fixing the roof? A. No, Sir; it wasn’t his duty to fix the roof.”
Witness Davidson testified as follows: “Q. What duties are incumbent on the man who runs the machine? A. Cut coal for the loaders. Q. In what way do they ascertain where to cut? Who directs them to the place where they shall cut? A. The man that loads the coal. Q. What are the duties of the machine man with reference to looking after the safety of the roof where he works? A. He ain’t got any I don’t suppose. Q. Who does that? A. The loaders. Q. State whether or not it is the duty of the machine man, when he goes to cut this coal, after he understands a place is ready — is it his duty to look after the roof or safety of a place where he cuts? A. They hardly ever do. He takes the loader’s word for whatever he tells him.”
Thomas Profit gave the following testimony: “Q. State what you do as a loader? A. I clean the place up ready for the machine man to cut. Q. Does the machine man'get any part of your wages? A. No,
John Profit also said: “Q. Are you acquainted with the duties of the machine man? A. Yes, sir. Q. What does he do ? A. He just cuts the coal. Q. After he cuts the coal, does he have anything further to do with it? A. No, sir. Q. After he cuts the place, what does he do with his machine? A. Loads it up and goes to another place, where it is cleaned up. Q. How does he know where to go and when the place is ready? A. The loaders generally tell him. Q. How do they report to him? A. When they get a place cleaned up, they tell him it is ready. Q. When you tell him it is ready, what does he understand that to mean? (Defendant objects. Objection sustained.)”
It was the duty of the loaders to clean up the room and pull down the loose slate, and prop the entry for the protection of the machine man and his helper. The witness Aaron Jones testified that he and one Mullens were employed, by appellee as 'loaders, and continued as follows: “Q. Where was he (Smith) when you saw him last before the slate fell on him? A. Unloading his machine to cut that. Q. Who had charge of that jolace where the slate fell on him? A. Me and Richard Mullens. Q. Your duties were to load coal. A.- Yes, sir. Q. What other duties did you have? A. Pull down all loose slate. Q. Who did you pull the slate down for, and what for? A. For the machine man, to keep it from falling down in his
The witness Owens testified as follows: £ ‘ Q. What was the duty of the loader as to preparing the place for the machine man to work? A. It was his place to see that the place was all right for the'machine man, and pull down loose slate, and see that the props were all right. Q. State whether or not the machine man had anything to do about looking after the roof of the mine where he worked or whether that was his duty? A. I don’t suppose it was his duty. Q. To whom was he to look for conditions? A. He was to go to the loader if the place was not in shape. He looked to the loader to seh that his place was all right.”
The witness Thomas Profit also testified: ££Q. How long have you followed the occupation as a loader? A. About seven or eight years. Q. Tell all the duties of a loader? A. To see that the room, is cleaned up. Pull down the loose slate and fix it up for the machine man to cut. Q. Why does he pull the slate down? A. To keep the machine man from getting hurt. Q. Who is it that looks after the safety of the place where the machine man works? (Defendant objects; objections sustained.) Q. Did the company have anybody to inspect these places and make them safe for these men? A. Yes. Q. Who was that? A. Gin hands.”
See the quotation from his testimony copied above. The witness John Profit said: ££Q. What particular
I have shown that there is testimony in the record that the place where Smith was put to work was very unsafe. Indeed, this is conceded in the opinion by the court. I have also shown that it was not Smith’s duty to make or keep it in a safe condition. This duty devolved upon the loaders or “bank boss,” Martin. I will now proceed to show that the bank boss, Martin, marked the place, which was, in effect, an order to Smith to cut this room neck, where he was killed; that Martin knew of the hill seam, which crossed the roof of the entry at an angle of about 45 degrees and entered the place that Smith was directed to cut; that he told a witness that he was going to prop it, and that he also knew of the rotten condition of the roof, and so did^the loaders, for some time before Smith was killed. And there is not the slightest testimony appearing in the record that they or any of them informed Smith of these conditions,1 nor is there any testimony showing that Smith knew of these facts, except from the statements of some of the witnesses to the effect that they supposed he knew as the defects were patent to them. The witness Aaron Jones, one of the loaders, after stating that Smith had made one cut in that room the evening before to a depth of four and a half or five feet, continued as follows: “Q. Had you seen the
The court concludes its opinion by saying in effect that it appeared from the evidence that it was the
In the case of Lexington & Carter County Mining Co. v. Stephens’ Adm’r, 104 Ky. 508, 47 S. W. 323 (20 Ky. Law Rep., 696), the court, after discussing the principle applicable to an action brought for personal injuries when death did not ensue, said: “But it must also be remembered that a recovery in such cases is authorized by the common law, and that at common law no recovery can be had for injuries resulting in the immediate death of the person injured. The right to recover in case of death is authorized by the constitution and statutes enacted by the Legislature, which give an absolute right to recover where death ensues from the negligence or wrongful act of the defendant, and it will be observed that the statute makes no reference to the knowledge or contributory negligence of the decedent; and, while it may be tru§ that the administrator or heir would not be allowed to recover in a case where the decedent had knowledge of the danger or risk he was about to incur, yet such negligence is a matter of defense, and, to be made available, must be pleaded and proved by the defendant. Any other construction of the law would, in effect, make it a dead letter, for the reason that, the injured party being dead, it would be impossible to prove that he was not aware of the danger, or that he could not with reasonable diligence have ascertained the danger.” I have-shown from the record that appellee’s mine, in which Smith was employed to labor was defective and dangerous; that he lost his- life by reason thereof; that it was the duty of appellant to make the place where Smith was injured reasonably safe, and to use ordinary care to keep it so; that it was not the duty of Smith to do
The only question left is as to the contributory negligence of Smith. There is no proof that he was negligent, except a few of the witnesses assume that he knew of the defects in the roof, because, in their opinion, the defects were patent. There was not the slightest intimation that Smith had any experience or knowledge in examining the roof of mines for the purpose of ascertaining defects and securing them with props. He was an experienced machine man. The question of the contributory negligence of Smith barring a recovery should unquestionably have been submitted to the jury and the court erred in refusing to do this. The case of Ashland Coal & Iron Railway Co. v. Wallace, supra, was one where the facts were very similar to the case at bar. It appears that in that case the person injured was an experienced miner, and was at the time of his injuries laying-track in an entry of the mine. In that case the court said: “In actions like this questions of negligence are for the jury to determine. The ordinary care which parties are required to use in the discharge of their respective duties varies so much with the situation of the parties and the circumstances of each particular case that the policy of law to relegate these questions to juries has long been settled. The application of these rules of law to this case clearly authorizes its submission to the jury. The testimony does not present a record where all reasonable men must draw the inference either that the plaintiff was guilty of, or that the defendant was free from, negligence. The testimony is conflicting. It is probable that, if the mine owner in this case had sent an experienced,
In view of the facts stated and the authorities cited, I am compelled to dissent from the opinion cf the court delivered in this case.