182 Ky. 540
Court of Appeals of Kentucky.
CARTER COAL CO. v. LAY.
Dec. 17, 1918.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
Suit by S. E. Lay, as administrator of James Laws, deceased, against the Carter Coal Company.
From judgment for plaintiff, defendant appeals.

CLAY, C.
S. E. Lay, as administrator of James Laws, deceased, brought this suit against the Carter Coal Company to recover damages for his death. From a verdict and judgment in favor of plaintiff for $5,500, the coal company appeals.

Laws was employed by the company as a coupler. Where it was necessary to run one of the electric motors into a room into which the trolley wire did not extend, it was the duty of the coupler to attach to the trolley wire in the entry a cable, which was connected to a spool on the motor, thus furnishing the motor the necessary current to carry it into the room. Shortly before the accident, the motor went up the left air course for the purpose of going into room No. 22. There being no trolley wire in that room, it was necessary for Laws, the coupler, to attach the cable to the wire in the air course. This he did, and the motor proceeded into the room. While standing in the air course, near where the track left the air course and turned into room No. 22, and awaiting the return of the motor, a large piece of slate fell from the roof and injured him so severely that he died a few weeks later.

It is first insisted that the evidence for plaintiff merely showed that there was loose slate at various places in the mine, and was not sufficient to show that there was loose slate at the place of the accident, or that defendant knew of the dangerous condition at the place of the accident, or could have known of it by the exercise of ordinary care, in time to have prevented the accident. While it may be true that all the evidence bearing on the question of loose slate was not confined to the place of the accident, yet it cannot be doubted that there was sufficient evidence of the condition of the roof at that place to make the question of defendant's negligence one for the jury. Thus it was shown that, in order to make the top of the air course over the main track high enough for the motor to go under, the company had caused a trench to be shot in the roof of the mine about a foot deep, thus leaving slate extending from the rib of the coal on either side of the air course to a point just short of the main track, and presenting an abrupt break at the trench. There was further proof that, under these circumstances, the defendant should either have cross-timbered the roof at that point, or should have taken down the loose slate, and that its foreman was so advised. These facts, coupled with the additional fact that the slate at that point actually fell, were sufficient to show that the defendant knew, or could have known with the exercise of ordinary care, of the defective condition of the roof in time to take such steps as were reasonably necessary to avoid the accident.

It is next insisted that the evidence given by the assistant state mining inspector was irrelevant and should have been excluded. On motion of the defendant, practically all of the evidence of this witness was excluded from the jury, except the statement that the air course was too wide and the roof was not safe unless properly cross-timbered, and that he advised the foreman of this fact before the accident, and that the foreman, after the accident, notified him that he was unable to timber at the place of the accident because there was so much timbering to be done. There was no error, we think, in the admission of this evidence, because it showed, not only the defective condition of the air course, but that this condition was brought home to the defendant.

Another error relied on is the giving of an instruction authorizing a finding of punitive damages. It appears, however, that the instruction complained of authorized a finding of both compensatory and punitive damages and directed the jury to state in its verdict whether the damages allowed were compensatory or punitive or both, and, if both, the amount of each. The verdict of the jury is as follows:

"We of the jury agree and find for the plaintiff a compensatory verdict in the sum of ($5,500.00) fifty-five hundred dollars."

From these circumstances it is clear that there was no finding of punitive damages, and the error, if any, in authorizing such damages, was not prejudicial.

The only error relied on is the refusal of the trial court to give an instruction on assumed risk. It is well settled that a servant does not assume the risk arising from his master's negligence unless he knew of the defective condition and appreciated the consequent danger, or the defective condition and the consequent danger were so obvious that an ordinarily prudent person, in his situation, would have observed the one and appreciated the other. Here the accident occurred in that portion of the mine where the defendant was under the duty to use ordinary care to furnish plaintiff a reasonably safe place to work. Plaintiff was not charged with the duty of inspection, and there is no evidence in the record from which it could be inferred, either that he knew of the defective condition of the roof and appreciated the consequent danger, or that its defective condition and the consequent danger were so obvious that an ordinarily prudent person in his situation would have observed the one and appreciated the other. It follows that there was no error in refusing the instruction on assumed risk.

At the time of his death, Laws was 20 years of age, had an expectancy of 34.22 years, and was making about $2.25 per day. Under these conditions, a verdict for $5,500 was not excessive, even though it be conceded that he spent his money freely and occasionally drank to excess.

Judgment affirmed.

Ky.App. 1918.

CARTER COAL CO. v. LAY.

206 S.W. 769, 182 Ky. 540



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