159 Ky. 644 | Ky. Ct. App. | 1914
Opinion op the Court by
— Reversing.
Hiram Shields, while employed in a mine owned and operated by the Walisend Coal & Coke Company, was struck by a falling rock, and so severely injured that he died in a few months. In this action for damages, his administrator recovered a verdict and judgment against the Walisend Coal & Coke Company in the sum of $7,000. The defendant appeals.
The accident occurred under the following circumstances:
For defendant there was evidence to the effect that the bank boss told Shields to go to the center of the stump and cut a narrow passage entirely through it, and then mine the coal from the back. Shields, instead oí doing narrow work, gouged out the coal from a large area. The rock which fell was not a part of the roof of the entry, but was two or three feet lower down, and constituted a part of the side of the entry and a part of the
It further appears that Shields had fired several shots in order to loosen the coal. Shields also testified that there was nothing wrong with the props furnished by the defendant, but stated that of course he could not prop in the entry.
It is the contention of defendant that the court erred in refusing to give a peremptory instruction in its favor. It is not insisted that it was the duty of defendant to prop the roof of the stump, nor is it claimed that Shields requested props and that defendant failed to furnish them. Plaintiff’s case is predicated on the theory that the entry itself was not in a reasonably safe condition, and that ordinary care in inspecting the entry would have revealed this condition. Pc may be conceded that it is the duty of the mine owner to use ordinary care to keep and maintain the entry of the mine in a reasonably safe condition. This, however, is not an ordinary case of dangerous or defective entry. Where a miner is engaged in pulling a stump, the stump itself is his working place. The perils to which he is subjected are those of his own creation. They grow out of the progress of the work. The duty of the master to use ordinary care to furnish the servant a reasonably safe place to work does not apply where as a result of the servant’s work the character of the place is constantly changed, and the place itself becomes dangerous either necessarily or from the manner in which the work is done. Smith’s Admr. v. North Jellico Coal Co., 131 Ky., 196; Labatt Master & Servant, Sec. 588; Cleveland, C. C. & St. L. R. Co. v. Brown, 20 C. C. A., 147. Here the outside of the rock did constitute a part of the entry, but the rock itself was above the coal in the stump. It would not have fallen had not the coal been removed. The coal was removed by Shields. Having removed the coal and thus created the danger, it was Shields’ duty either to sound the top and remove the rock, or use props to prevent it from falling. He admits that he did not perform either of these duties. Furthermore, the side of the entry consisted of the coal itself which Shields had removed, and the rock and slate above it. The rock did not fall from the top of the entry. It did not fall because the side of
Judgment reversed and cause remanded for proceedings consistent with this opinion.