Case one of two
166 Ky. 213
Court of Appeals of Kentucky.
CARTER COAL CO. v. HILL.
Oct. 14, 1915.
ACTION: Reversed and remanded.


Appeal from Circuit Court, Knox County.
Action by W. H. Hill against the Carter Coal Company. From a judgment for plaintiff, defendant appeals.

CLAY, C.
This is a personal injury case in which plaintiff, W. H. Hill, recovered of defendant, Carter Coal Company, a verdict and judgment for $15,000. The coal company appeals.

The facts are as follows: The company employed certain men to undercut coal by means of electrical cutting machines. After the coal is undercut it is the duty of other employes, called "loaders," to shoot or dig down the coal and load it into the cars. This character of work was let out by contract at so much per ton. One G. P. Brooks had the contract at the place where plaintiff was injured. In carrying out his contract Brooks was assisted by plaintiff, Will Gaylor, and W. F. Detherage. Plaintiff had had about 15 years' experience as a miner. Prior to the accident he had been working as a loader in another part of the mine. On the morning of the accident he was directed by Brooks to go to work in a room neck. This neck had not been carried a sufficient distance to be called a room. It was only 9 or 10 feet wide, and the work of mining had progressed only for a distance of about 20 feet. Soon after plaintiff went to work he was struck by a large piece of overhanging slate and severely injured. The roof of the neck at this point could have been protected by cross-timbers of jack posts, and it was the duty of the company to do this work. Brooks says that it was his duty to do all straight timbering; that is, set the jack posts. Pete Broyles, the timber man, who was also sued, says that it was his duty to do the cross-timbering, but not set the jack posts. Other witnesses say it was not part of plaintiff's duty either to cross-timber, set the jack posts, or take down the draw slate. Plaintiff also states that just before going into the room neck he was assured by Pete Broyles, the timber man, that the top of the room was sound. Plaintiff also claims that it was his custom to sound the roof when he went to work; that he did so on the occasion in question, and the roof appeared to be solid. Plaintiff admits, however, if he found the slate loose it was then his duty to report it to some one. For the defendant, the mine foreman, York, after stating it was his duty to look after the working places and see that they were safe, testified as follows:

"Q. Tell the jury whose duty it was to take down the draw slate.
A. It was the contractor, the men employed loading the coal to take it out; or, if it come in large falls, we would send a man to help timber it up and pay them for taking it up."

Broyles, the timber man, testified that it was not his duty to look after the loose slate at the face of the coal in the men's working places. It was his duty to cross-timber, but this could not be done within 12 feet of the face of the coal. He further testified that the place where plaintiff was at work was too close to the face of the coal to permit of cross-timbering, and it was no part of his duty to set the jack posts, although he admits that he started to get a jack post for the purpose of setting it up just shortly before the accident occurred. He further claims that just prior to the accident he warned plaintiff of the dangerous condition of the roof. Gaylor, who was working with plaintiff, and who had formerly been a contractor and assigned his contract to Brooks, said that, under his contract, the company was to do all cross- timbering, but he was to set the jack posts. Detherage, who was also working with plaintiff, testified that it was the duty of the man doing the contract to take down the loose slate; that the man engaged in loading coal is always supposed to take care of the loose slate. He further said it was the duty of the man who loaded the coal to set the jack posts. Brooks, the contractor, testified that it was not the duty of the company to timber at the place where the slate fell. It was his duty, under his contract, to have the draw slate taken down and to set the jack posts in the working places.

The accident out of which this action arose occurred in the year 1913, and therefore prior to the amendments of 1914 to the mines and mining statute. Under the statute then in force, it was the duty of the mine owner, after the miners had selected and marked them, to furnish to the miners a sufficient number of caps and props to be used by the miners in securing the roof in their rooms, and at such other working places where by law or custom of those usually engaged in such employment it was the duty of the miners to keep the roof propped. Manifestly, by custom or rule of the mine, the duty of propping or timbering does not devolve upon the miner himself. Defendant insists that the trial court erred in assuming in the instructions that it was the duty of the defendant to prop the roof, and therefore use ordinary care to make plaintiff's working place reasonably safe. Plaintiff's evidence shows that under the custom of the mine no duty of propping devolved upon him. Defendant insists that the evidence of York, Broyles, Gaylor, Detherage, and Brooks, above set forth, shows that it was the duty of the plaintiff and those working with him to do the propping. We have carefully considered the evidence referred to, and fail to find any ground for this contention. Brooks says it was his duty, under his contract, to set the jack posts, and a careful reading of the statements of York, Detherage, Gaylor, and Broyles shows that the word "loaders" was used with respect to the contractor, and not with respect to the men employed by him to do the work. On the whole, we think the evidence shows that it was the duty of the company to do the propping, but that under the contract between the company and Brooks this duty devolved upon Brooks. Manifestly, if, under the custom of the mine, it was the duty of the company not only to cross-timber, but to set the props, the responsibility arising from this duty could not be evaded by a contract requiring the contractor to perform the work. If, upon another trial, it should be made to appear that the contractor's employes were themselves charged with the duty of propping or taking down the draw slate, then the question of whose duty it was to do such work under the particular circumstances of this case should be submitted to the jury. Of course, if it was the duty of the plaintiff and those working with him to do this work, and they failed to do so, and by reason thereof he was injured, there can be no recovery.

Objection is urged to an instruction authorizing a recovery based on an assurance of safety given by Broyles, the timber man. It is urged that Broyles was not in authority over plaintiff and had no right to bind his master by an assurance of safety. The evidence shows that the duty of cross-timbering the rooms devolved upon the company. Broyles was the agent selected by the company to perform this work. He was to do this work when the conditions required, and it must be presumed that he possessed superior knowledge of the danger, or lack of danger, growing out of the condition of the roof. As the duty of cross-timbering devolved upon the master, and as this duty was intrusted to Broyles, Broyles became a vice principal and took the place of the master, and his assurance of safety was, in effect, an assurance by the master. It follows that the trial court did not err in giving the instruction referred to. We conclude, however, that the rule should work both ways. Broyles not only says that he did not give plaintiff any assurance of safety, but distinctly told him that the roof was dangerous. If the plaintiff had the right, on the one hand, to rely on Broyles' assurance of safety, he should be required, on the other hand, to heed Broyles' warning of danger, and the jury should be told, in substance, to find for the defendant if Broyles, the timber man, warned plaintiff of the dangerous condition of the roof and of the danger of working thereunder a sufficient length of time before the accident to have enabled plaintiff, by the exercise of ordinary care, to stop work and avoid the peril.

In his argument to the jury counsel for plaintiff used the following language:

"(1) You can take from this corporation its hoarded thousands and millions, and you can't pay this man for these wails and pains and agonies that he has suffered.

(2) Go out and bring in a verdict here against this wicked, soulless corporation--this thing that's got no life, that you can't hurt and that can't feel.

(3) Something must be done with this lawless corporation that's left a string of desolation and destruction and maiming from one end of Brush creek to the other, a sample of which you have here before you in Wiley Hill.

(4) Ah, Marsee, how can you, with the hireling soul that you have in you for this wicked corporation up there, how can you look this man in the face?"

Defendant objected to the foregoing statements, and moved the court to exclude them from the consideration of the jury. The objections and motion were overruled. The plaintiff's right to recover in this action depended on the company's negligence and his want of contributory negligence. The amount of money which the corporation had and the number of accidents which had happened in its mine were matters about which no evidence was given, or could, with propriety, have been given. Counsel, in going outside of the record and bringing such matters to the attention of the jury, could have had no purpose other than to inflame the minds and excite the passions of the jury. This is not a case of one act of impropriety followed by an admonition of the court to the jury not to consider the statement. It is a case where the limits of legitimate argument were transcended in a number of instances without rebuke or admonition from the court. Such violations of the propriety of debate have been condemned in a number of cases and reversals ordered. In none of these cases was the language more objectionable than that used by counsel in the present case. Indeed, if a reversal were not ordered in this case, it would be difficult to find a case requiring a new trial because of improper argument.

But the point is made that the improper argument of counsel was not sustained by affidavits, as required by the Code. Section 340, subsec. 2, Civil Code, authorizes a new trial for misconduct of the jury, of the prevailing party, or of his attorney, Section 343 provides in part as follows: "The grounds mentioned in section 340, subsections 2, 3 and 7, must be sustained by affidavits showing their truth; and may be controverted by affidavits."

In our opinion, this provision applies in those cases only where the misconduct of the counsel does not take place in the presence of the court, or, taking place in his presence, is the subject of dispute. It does not apply to improper argument taking place in the court's presence about which there is no dispute and to the happening of which the court certifies in the bill of exceptions. In the present case the improper argument is set forth in the bill of exceptions and certified to by the court. This practice has always been regarded as sufficient.

Judgment reversed, and cause remanded for a new trial consistent with this opinion.

Ky.App. 1915.

CARTER COAL CO. v. HILL.

179 S.W. 2, 166 Ky. 213



Case two of two
171 Ky. 828
Court of Appeals of Kentucky.
CARTER COAL CO. v. HILL.
Oct. 31, 1916.
ACTION: Reversed for new trial.


Appeal from Circuit Court, Knox County.
Action by W. H. Hill against the Carter Coal Company. Judgment for plaintiff, and defendant appeals.

MILLER, C. J.
This is the second appeal of this case; see 166 Ky. 214, 179 S. W. 2, for the opinion upon the former appeal. The facts are stated in detail in the former opinion; but in order to understand this opinion, it may be profitable to repeat them, briefly.

Brooks had a contract to mine coal for the appellant company, at a stipulated price per ton. Hill, Gaylor, and Detherage worked for Brooks. Hill, a miner of 15 years' experience, was directed by Brooks to go to work in a room neck, about 9 or 10 feet wide. Hill began working, and shortly thereafter he was injured by a large piece of slate falling from the roof upon him. The roof of the neck where Hill was at work could have been protected by cross timbers and jack posts; and, in the former opinion, it was stated that it was the duty of the company to do that work.

Upon the first trial Brooks, the contractor, said it was his duty to do all straight timbering; that is, to set the jack posts, while Broyles, the timberman in the service of the company, said it was his duty to do the cross timbering up to within 12 feet of the face of the coal, but not to look after the loose slate at the face of the coal, or to set the jack posts. Broyles further testified that the place where Hill was at work when injured, was too close to the face of the coal to permit any cross timbering there.

Other witnesses testified that it was not a part of Hill's duty either to cross timber, set the jack posts, or take down the draw slate.

Hill testified that before going into the room neck he was assured by Broyles that the roof of the room was safe, and that he went to work upon that assurance. There was testimony to the effect that it was Brooks' duty to take down the draw slate at the face of the coal in the working places.

Section 2739b, subsec. 7, of Kentucky Statutes 1909, in force at the time of the accident, was not applicable, if by custom or rule of the mine the duty of propping or timbering did not devolve upon the miner himself. It became necessary, therefore, to determine, by proof, what was the rule or custom of the mine, as to the respective duties of the miner and the mine owner.

In view of the foregoing evidence, the first judgment was reversed for the reasons appearing in the following extracts taken from the former opinion:

"Defendant insists that the trial court erred in assuming in the instructions that it was the duty of the defendant to prop the roof, and therefore use ordinary care to make plaintiff's working place reasonably safe. Plaintiff's evidence shows that under the custom of the mine no duty of propping devolved upon him. Defendant insists that the evidence of York, Broyles, Gaylor, Detherage, and Brooks, above set forth, shows that it was the duty of the plaintiff and those working with him to do the propping. We have carefully considered the evidence referred to and fail to find any ground for this contention. Brooks says it was his duty, under his contract, to set the jack posts, and a careful reading of the statements of York, Detherage, Gaylor, and Broyles shows that the word 'loaders' was used with respect to the contractor, and not with respect to the men employed by him to do the work. On the whole, we think the evidence shows that it was the duty of the company to do the propping, but that under the contract between the company and Brooks this duty devolved upon Brooks. Manifestly, if, under the custom of the mine, it was the duty of the company not only to cross timber, but to set the props, the responsibility arising from this duty could not be evaded by a contract requiring the contractor to perform the work. If, upon another trial, it should be made to appear that the contractor's employes were themselves charged with the duty of propping or taking down the draw slate, then the question of whose duty it was to do such work under the particular circumstances of this case should be submitted to the jury. Of course, if it was the duty of the plaintiff and those working with him to do this work and they failed to do so, and by reason thereof he was injured, there can be no recovery."

And, upon the subject of the assurance of safety claimed to have been made by Broyles, the court there further said:

"As the duty of cross timbering devolved upon the master, and as this duty was intrusted to Broyles, Broyles became a vice principal and took the place of the master, and his assurance of safety was, in effect, an assurance by the master. It follows that the trial court did not err in giving the instruction referred to. We conclude, however, that the rule should work both ways. Broyles not only says that he did not give plaintiff any assurance of safety, but distinctly told him that the roof was dangerous. If the plaintiff had the right, on the one hand, to rely on Broyles' assurance of safety, he should be required, on the other hand, to heed Broyles' warning of danger, and the jury would be told, in substance, to find for the defendant if Broyles, the timber man, warned plaintiff of the dangerous condition of the roof and of the danger of working thereunder a sufficient length of time before the accident to have enabled plaintiff, by the exercise of ordinary care, to stop work and avoid the peril."

It will thus be noticed that the court reversed the first judgment because the trial court had erred in not submitting to the jury (1) the question as to whose duty it was to prop the roof and take down the draw slate, and (2) the question whether Broyles had warned Hill of the dangerous condition of the roof.

Upon the second trial the proof upon these questions was somewhat more definite. Thus it was made more clearly to appear that the word "loaders" described Hill, Gaylor, and Detherage, and not Brooks; and that it was their duty to look after the roof of the working place and to take down any loose slate, or prop it, temporarily. While it is true Hill testified it was the duty of Broyles, the company's timber man, to prop the slate which fell, he is contradicted in this claim by Gaylor and Detherage, who were doing the same kind of work. York, the mine foreman, also testified it was the duty of the men who loaded the coal to take down the slate. And Broyles testified, unequivocally, that he told Hill the roof was dangerous, and that he ought not to work in the room neck where he was subsequently injured; and in this Broyles is sustained by Gaylor and Detherage.

Instead, however, of submitting these two questions to the jury under appropriate instructions, as the former opinion directed, the court merely copied the instructions it had given upon the first trial, omitting only an immaterial instruction, not now asked, as to the effect of a release. Under these instructions the jury returned a verdict for the plaintiff for $4,150.

From that judgment the company appeals, insisting that, in view of the explicit evidence as to plaintiff's duty to prop the roof and take down the slate, it was entitled to a directed verdict. But, in view of the contradictory evidence upon these two important points, we think the trial court properly overruled defendant's motion for a peremptory instruction.

It would seem, however, to be hardly necessary for us to repeat the well-established rule that the opinion upon the first appeal stated the law of the case and for all subsequent proceedings, and that it is binding upon the circuit court, and this court, alike. The importance and necessity of the rule is emphasized by the last judgment in this case, which must, of necessity, be reversed for the failure of the trial court to follow the former opinion.

The contention of counsel for appellee that instruction 3 given upon the last trial, is a substantial compliance with the direction of the opinion is not sustained by the record, since that instruction was precisely the same as instruction No. 3 given upon the first trial. If that instruction had, upon the first trial, submitted the questions above referred to, there would have been no necessity of reversing the first judgment.

It necessarily follows, therefore, that in failing to give the directed instructions upon the second trial, the circuit court was in error.

Judgment reversed for a new trial not inconsistent with this opinion.

Ky.App. 1916.

CARTER COAL CO. v. HILL.

188 S.W. 892, 171 Ky. 828



     

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