135 Ky. 406 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
Appellant, John Trosper, instituted this action against appellee, East Jellico Coal Company, to recover damages for personal injuries. Upon the conclusion of the evidence the court gave a peremptory instruction to find for appellee. To review the propriety of this ruling this appeal is prosecuted.
At the time appellant was injured he was employed in removing some steel rails and air pipe from ap
It was in the performance of this duty that appellant was injured. The place at which he was injured was about midway between the two ends of the entry, which was several hundred feet in length. There were arranged in the mine certain crossbeams which were located 1% to 2 feet from the top of the mine. These cross-beams were set in hatches cut into the slate and supported the pipes which conveyed air from the compressor on the outside. At first appellant and his fellow ■ workmen dragged the
According to the evidence for appellant, the crossbeams were located about five feet and a half or a little over above the track. According to the testimony for appellee, the cross-beams were more than six feet distant from the track. Appellant is six feet three inches tall. While he had worked on the outside of the mine his evidence shows that he has frequently been in the mine. The evidence shows that Curtis and appellant’s brother always stooped when walking under the cross-beams. On the evening of the accident appellant and his companions had made at least two trips into the seventh left entry, and had passed the cross-beams not less than four times. The mine was sufficiently lighted to enable appellant to see a distance of from 30 to 35 feet. Appellant was engaged as driver, and it was his duty to look after the mule. He was in charge of the work that was then being done. In answer to the question, “You knew as
While it is the duty of the master to furnish the servant a reasonably safe place in which to work, yet the servant cannot recover if he knows of a danger, and does not exercise ordinary care for. his own safety. Knowing’ of the location of the cross-beams, appellant could have escaped injury by the exercise of the slightest degree of ordinary care.
Appellant insists, however, that the rule applicable to permanent structures by the side of railroad tracks or overhead bridges should be applied in this case. There is, however, a wide distinction between the two cases. A train moves along at a high rate of speed. A trainman while engaged in the performance ■ of his duty on the top or side of a car may be caught unawares. While his attention is fixed upon the performance of his duties, he may be suddenly carried under a bridge and thrown from the train. Here the employes either walked or rode slowly behind a mule. The cross-beams were a part of the general plan of the mine.
Entries in mines are necessarily low, as there must be economy of space. This is not the case with reference to overhead or side structures along a railroad. There is plenty of room for them. There was no
The fact that the pipe had been removed from the cross-beams at the time of the accident has no bearing upon the case. Appellant knew this fact, because he was engaged at that very time in taking the air pipes out of the mine; and he knew from whence the air pipes had come. Having stated that he knew the cross-beams were there, it is immaterial that the air pipes were not resting on the cross-beams. Even though the place where appellant was working maj not have been reasonably safe for a person who did not know of the presence of the cross-beams, it cannot be said that the place was not reasonably safe for one who actually knew the cross-beams were there. We therefore conclude that the trial court properly instructed the jury to find for appellee.
Judgment affirmed.