Court of Appeals of Kentucky.
June 2, 1909.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by John Lee against the Cumberland Coal Company. Judgment for plaintiff, and defendant appeals.

This appeal is from a judgment of $2,000 in favor of appellee for injuries he received by reason of slate falling from the roof of one of the main entries of appellant's mines in Knox county, Ky. The testimony shows, without contradiction, that the roof of this entry, at the place where appellee was injured, was in a rotten and dangerous condition for a considerable time before appellee was injured; that he was an inexperienced miner, and did not know of the dangerous condition of the roof; that appellant's mine boss, Mr. Kidner, and its general superintendent, L. C. Harbison, did know of the defective condition of the roof for a sufficient length of time to have had it made reasonably safe before the injury to appellee.

The main defense was that appellee was not in its employ; that it had let the contract to drive this entry to two persons by the name of E. M. Frisbee and Jack Frisbee; that they were independent contractors, and alone were responsible to appellee, a common laborer in the mine, whom they had employed to assist them in carrying out their contract. There was much testimony introduced on this issue; but the court, in instructing the jury, eliminated it, which, if error at all, was prejudicial to appellee only. The testimony of the mine boss, Kidner, and others, showed that the general rule was, when there was no special contract to the contrary, the company was to keep the entries reasonably safe for the protection of persons engaged in the mine, to the extent they had received and accepted the entries from the persons who constructed them. It was also shown by the testimony that this entry had been driven 50 or 100 feet beyond the point at which appellee was injured before the Frisbees took their contract. In addition to this, the preponderance of the testimony showed that in the contract with the Frisbees the company obligated itself to prop the entries and keep them reasonably sale.

The court, by its instructions, only authorized the jury to find for appellee in the event they believed from the evidence that appellant had bound itself by the contract with the Frisbees to keep the room reasonably safe, and in effect told the jury that unless they did so believe they would find for appellant. It is true the court did not use this language, but did use language that could not have been otherwise construed by the jury. The instruction is as follows: "Unless the jury shall believe from the evidence that it was the duty of the defendant by contract with said Frisbees, at the time of said injury, to maintain reasonably safe mine conditions in said mine entry, they should find for the defendant."

Appellant does not complain of the amount of the verdict, nor does it claim that appellee was not entitled to damages. Its only contention is that the Frisbees should remunerate him, instead of it. If it were true, as the jury found, that it contracted with the Frisbees to the effect that it would keep the entries propped and in a reasonably safe condition for the safety of the men who were working in its mines and neglected to do so, it should compensate appellee for the damages sustained by reason of its negligence or failure to perform its contract.

For these reasons, the judgment of the lower court is affirmed.

Ky.App. 1909.
119 S.W. 746

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