25 Ky.L.Rptr. 2056
Court of Appeals of Kentucky.
EAST JELLICO COAL CO. v. GOLDEN.
March 18, 1904.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by James Golden against the East Jellico Coal Company.
From a judgment for plaintiff, defendant appeals.

SETTLE, J.
This is an appeal from a verdict and judgment of $1,500 recovered in an action by appellee against appellant, in the Knox circuit court, for injuries to his person by the falling upon him of a rock and dirt from the roof of appellant's coal mine, where appellee was at the time at work "drawing stumps"; it being averred in the petition that his injuries resulted from the negligence of the appellant in failing to keep the roof of its mine in a safe condition. There can be no doubt, from the evidence, but that appellee's injuries were both painful and permanent, for his hip and spine were crushed, and his person otherwise so hurt as to produce partial paralysis of the bowels and impairment of his general health. It appears from the record that, in mining operations, large blocks or stumps are left in certain places in the mines as supports for the roof over the room in which the miners work, with spaces to allow passing around them. When the coal in any division or section of the mine has been exhausted, all the miners are withdrawn from that particular place, and the stumps or pillars are taken out, for the coal they contain. In removing them, props of timber are used to support the roof. The removing of these pillars or stumps is called "drawing the stumps," and it is a work of more or less danger. The work of drawing the stumps in the mine of appellant was solicited by appellee of the mine superintendent, Hansford, who informed appellee of the danger attending it, and expressed to him the fear that he was not sufficiently skilled in mining to undertake it; but appellee told him that he understood the danger and could do the work, and his employment by the superintendent followed. Appellee then began and proceeded with the work, until he was injured by the falling upon him of rock and dirt or slate from the roof of the mine, the weight of which was about 1,000 pounds. Much of the work of removing the stumps was done by blasting with powder. In removing the stumps, it was the duty of appellee to prop the roof at that place with timbers to prevent same from falling when left without the support of the stumps, but it was the duty of appellant to furnish timber for that purpose. The point of difficulty in this case arises in determining from the evidence whether the place of the accident was in that part of the mine where appellee was charged with the duty of keeping the roof securely propped, or at a point where it was the duty of appellant to do so. If the debris fell upon appellee in a part of the mine which did not include the stumps he was removing, and the propping of which he was not charged with the duty of attending to, it was the duty of appellant to keep its roof at that point in a reasonably safe condition; and if it failed to do so, and by reason thereof the debris fell upon and injured the appellee, such failure was negligence, and appellant is responsible to appellee for such damages as he may have sustained thereby. But, upon the other hand, if the place where appellee was injured was a part of the mine from which he was removing stumps, it being his duty to keep the roof there securely propped, if he negligently failed to do so, and by reason of such negligence received his injuries, appellant is not liable therefor. Furthermore, though the place of the accident was not that part of the mine from which appellee was removing stumps, but was a part thereof that appellant was required to keep propped, if it was in such close proximity to that part of the mine from which appellee was removing stumps as to be affected by the blasting done by appellee upon the stumps, and the blasting caused the debris by which appellee was injured to fall, when it would not otherwise have done so, the appellant is not liable therefor, unless its mine superintendent knew, or by the use of ordinary care could have known, that such blasting would cause the top of the mine at that place to fall, and, with such knowledge or means of knowledge, negligently failed to guard against its doing so, by more securely propping the same, and appellee did not know, or by the use of ordinary care could not have known, that such would be the effect of the blasting. In other words, it was the primary duty of appellant to keep that part of its mine through which appellee had to pass to reach the place of the stumps securely propped, so as to make it reasonably safe for his use; but, after informing him of the danger of the work of removing the stumps, it was under no duty to protect him in that part of the mine where the stumps were situated from danger resulting from his manner of doing his work.

While the evidence is conflicting as to the place of the accident, we think the weight of it conduced to establish the fact that it occurred at a point 20 or 25 feet from the stump that appellee at the time was removing, and in a part of the mine where it was not his duty to prop the roof to keep it from falling.

The evidence also conduced to prove that the falling of the roof was caused by the blasting done by appellee upon the nearby stump. If so, the appellant is not liable, unless it was shown by the evidence that it knew, or by the use of ordinary care could have known, that the blasting would cause the roof to fall, in time to have secured it against falling, and, further, that appellee did not know, and by the use of ordinary care could not have known, that the blasting would have such effect.

It was the province of the jury to determine whether appellee's injuries were caused by the negligence of appellant, or by his own negligence. They found that appellant was the negligent party; and, as we are unable to say that there was not some evidence to support the verdict, it will not be disturbed.

The instructions, though not in full accord with the view of the law herein expressed, were more favorable to appellant than was proper, for they, in effect, informed the jury that appellee was not entitled to recover, even if the accident occurred in that part of the mine where appellee was not at work, and where appellant was alone charged with the duty of keeping the roof of its mine in a safe condition, unless it knew, or by the use of ordinary care could have known, of the danger to appellee from overhanging rock or slate at the place of the accident, and that appellee did not know, or by the use of ordinary care could not have known, of such danger, in time to have prevented his injuries. As we have already stated, it was the duty of appellant to keep entrances and passways in the mine in a reasonably safe condition for the use of its employes; and appellee, in using such passways, had the right to rely upon the assumption that appellant's mine superintendent had properly performed his duty in that respect.

It is insisted for appellant that there can be no recovery in this case because it is alleged in the petition that appellee was injured in the main entrance of appellant's mine, whereas the evidence shows it was received in the first side right entrance, and that the variance is fatal. We cannot accept this view of the case. It is true that the petition fixes the place of the accident as in the main entrance, and that the proof shows it to have occurred in the first side right entrance, but no objection was made to the evidence by appellant. In fact, its own evidence was directed to showing that it was in the first side right entrance. Section 129, Civil Code, provides that "no variance between pleadings and proof is material which does not mislead a party to his prejudice in maintaining his action or defense upon the merits. A party who claims to have been so misled must show that fact to the satisfaction of the court; and thereupon the court may order the pleadings to be amended upon such terms as may be just." Gaines v. Deposit Bank (Ky.) 39 S. W. 438. Section 130, Civ. Code, provides that, "if such variance be not material, the court may direct the fact to be found, according to the evidence, and may order an immediate amendment." After the beginning of the trial, and before the taking of the evidence had progressed to any considerable extent, the appellee offered to file an amended petition, in which, among other things, it was averred that the injury to his person occurred in the first right side of the main entry, but the lower court refused to allow the amendment to be filed. Such refusal, under the circumstances, was error, but only prejudicial to appellee. In view of the offer to file the amendment, and of the fact that, without objection from appellant, the proof was allowed to be made to show the true place of the accident, just as if there was no issue made by the pleadings on that point, and of the further fact that the rights of the appellant were not prejudiced thereby, we are of opinion that it is estopped to raise the question of variance now relied on.

For the reasons indicated, the judgment is affirmed.

Ky.App. 1904.
EAST JELLICO COAL CO. v. GOLDEN.
79 S.W. 291, 25 Ky.L.Rptr. 2056



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