Case one of two
152 Ky. 92
Court of Appeals of Kentucky.
INTERSTATE COAL CO. v. SHELTON.
Feb. 7, 1913.
ACTION: Reversed and remanded for new trial.


Appeal from Circuit Court, Knox County.
Action by Joe Shelton, administrator, against the Interstate Coal Company.
From a judgment for plaintiff, defendant appeals.

HOBSON, C. J.
Lee Hamblin was in the service of the Interstate Coal Company as striker in the blacksmith shop, or assistant of the blacksmith, Will Trosper. The company maintained a coal tipple from which coal was dropped into a shaker, by means of which the fine coal was separated from the larger lumps. The shaker rested on an iron shaft about 3 inches in diameter and about 11 feet long. A platform had been built for the use of the workmen working about the shaker. This platform was 18 feet above the ground. The floor of the platform was composed of oak plank 2 inches thick and 10 or 12 inches wide, 12 feet long. The frame upon which the floor rested was 11 feet long, so that the ends of the plank projected a few inches beyond the timbers they rested on. On May 20, 1910, Trosper received an order from the superintendent of the mine, directing him on that night to take out the shaft supporting the shaker, and to put in a larger shaft. Three other men in addition to his assistant, Hamblin, were assigned to help him on the job. The reason for doing the work at night was not to interrupt the use of the shaker during the day. That night Trosper, with the four hands assigned to him, after dark went upon the platform and took out the bolts which fastened the shaft. He then directed Hamblin and a man named Dawson, who was one of the men assigned to assist him, to take the shaft out. Hamblin and Dawson got the shaft out on the platform; Trosper being on the opposite side of the shaker from them and a few feet away. When Hamblin and Dawson had the shaft on the platform, Hamblin said to Dawson that he would throw it off. Dawson said: "No;" it might break it." Hamblin said "No;" that was the way that he and Trosper had done before. Trosper, who was in hearing, said nothing, and Dawson then said, "Wait until I get in the clear." He then got to one side, and as soon as he did this Hamblin pushed the shaft off the platform; one end of it being already on the edge, or over the edge. When Hamblin threw the shaft off, the center plank of the platform fell through it, and Hamblin, who was standing on this plank, fell through with it; he and the plank both falling into a coal car that was setting under the platform. He struck on his head, and was killed. This suit was brought by his personal representative to recover for his death, on the ground that the company was negligent in failing to furnish him a reasonably safe place to work; that the planks in the platform were not nailed; and that the structure was a dangerous one for the purpose for which it was intended. The proof introduced on the trial conduced strongly to show that Hamblin's fall was due to the plank on which he was standing slipping until the end opposite to the place where the shaft was thrown off had slipped off the girder, and that this plank was not fastened or secured in any way. There was proof for the defendant that there was a collar on the shaft, also some other attachments, and that there was a scar on the end of the plank, indicating that the shaft as it fell, struck the plank, and so caused it to fall. There was also proof for the defendant that the planks constituting the floor of the platform were securely nailed with large nails six inches long. The jury found for the plaintiff in the sum of $6,000. The court entered judgment on the verdict, and the defendant appeals.

It is insisted for the defendant that the court should have instructed the jury peremptorily to find for it, because the evidence does not definitely show how Hamblin came to fall, and shows that he voluntarily threw the shaft off, and but for this would not have been killed. The men were working in the dark, with no light except miner's lamps in their caps; but each could see the other's light. Both Trosper and Dawson saw Hamblin fall; and his position in the car, as well as the hole in the platform, and the plank which also fell in the car, showed definitely how the accident happened. While it is true that Hamblin would not have been hurt if he had not thrown the shaft off, it is also true that throwing the shaft off would not have caused any trouble if the plank had been securely fastened. Trosper, under whom he was working, had done the work in the same way on a previous occasion; and Trosper, who was in charge of the work, made no objection to his suggestion that they should throw the shaft off. It cannot be said, therefore, that he was acting outside of the scope of his duty, and the circuit court properly refused the peremptory instruction asked by the defendant.

The witness Will Trosper was asked to tell the jury whether the plank that fell was nailed, and answered that he did not know. He was then asked to give his best judgment about it, and said he did not know whether it was nailed or not. The attorney insisted that he wanted his best judgment as to whether the boards were nailed, and he then answered: "My judgment is they were not nailed. I don't know." He was then asked to tell the jury, from his knowledge of the boards and the handling of the shaft, whether, if the board had been nailed, it would have been pulled off its support, and said he didn't know; it might, or it might not. The attorney then said that he did not ask for his knowledge, but for his opinion on the subject, and he said it would depend on the nails; that the board would not have been jerked off if it had been nailed with large nails. There was a similar course of interrogation with three other witnesses. None of this evidence should have been admitted. The jury could judge of the matter just as well as the witnesses. None of them were experts on the subject of the strength of timbers or nails, and, in fact, the matter asked about was not a subject for expert testimony. An expert might testify as to the strength of certain nails or the strength of certain timbers, and all the witnesses might testify to every fact they knew; but the conclusion to be drawn from the facts was for the jury and not for the witnesses.

The plaintiff was allowed to prove by several witnesses that when they returned to the platform to finish the work after taking Hamblin away a servant of the company was upon the platform nailing the planks down. He was also allowed to prove by other witnesses that they examined the platform the next day and saw the heads of nails which looked fresh, and had but recently been driven in to hold the floor of the platform. There was other proof showing that some days later additional planks were put on, and the platform made more secure. All of this evidence should have been omitted. The rule is that repairs made after an accident may not be shown to prove that the thing was not in a good condition before the accident. The circuit court charged the jury that they should consider this evidence only for the purpose of proving the condition of the platform at the time of Hamblin's injury; and it is insisted that the fact that nailing was done there just after the injury is evidence that the planks were not properly secured before. We cannot see the force of the distinction. Such a distinction, if maintained, would allow such evidence in all cases. One plank had fallen off the platform; it was natural that when this plank was placed back in position it should be nailed down; and, as an accident had occurred, it was not unnatural that the man who did the nailing would nail other planks for safety's sake. The question in the case is, Was the plank securely nailed before Hamblin fell? To allow proof that the defendant made it secure after he fell, as tending to show that it was not safe before, would be to place the defendant in the position that it could not make repairs on its property without this being taken as an admission that its want of repair had caused the accident, and would have a tendency to deter the making of repairs after an accident had happened, though in fact needed.

The plaintiff proved by one witness that he was working on this platform about a week before the accident, and while working there had occasion to move one of the planks of the platform (he could not state definitely which one); and that this plank was not nailed, but loose. This evidence was properly admitted, because the platform was a whole, and the fact that one of the planks was loose was a circumstance tending to show that the planks were not securely nailed. This proof, taken in connection with the other facts shown on the trial, was sufficient to warrant the conclusion that the planks had not been nailed, as testified to by a witness for the defendant, but had simply been laid on the platform loose.

There was sufficient evidence to take the case to the jury, but for the errors we have named in the admission of evidence, the judgment must be reversed. On another trial, in instruction 1, in lieu of the words, "it was the duty of the defendant, the Interstate Coal Company, to furnish to the deceased, Lee Hamblin, a reasonably safe place," etc., the court will tell the jury that it was the duty of the defendant to use ordinary care to furnish to the deceased, Lee Hamblin, a platform to work on that was reasonably safe under such strains as might be reasonably anticipated in the uses for which it was intended. The master is not an insurer of the safety of his premises. He is only required to use ordinary care to make them reasonably safe for the uses for which they are intended. We do not find anything in the evidence warranting the third or the sixth instructions given on the motion of the defendant, and on another trial both of these instructions will be omitted. In lieu of the fifth instruction, the court will tell the jury that it was incumbent on Hamblin to use ordinary care for his own safety; and if he put on the floor of the platform a strain which, in the exercise of ordinary care, he should not have put on it, and but for this would not have been injured, they should find for the defendant.

Judgment reversed, and cause remanded for a new trial.

Ky.App. 1913.
INTERSTATE COAL CO. v. SHELTON.
153 S.W. 1, 152 Ky. 92
Case two of two
160 Ky. 40
Court of Appeals of Kentucky.
INTERSTATE COAL CO. v. SHELTON.
Oct. 2, 1914.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
Action by Joe Shelton, administrator, against the Interstate Coal Company.
From a judgment for plaintiff, defendant appeals.
See, also, 152 Ky. 92, 153 S. W. 1.
SETTLE, J.

This action was brought by the appellee, Joe Shelton, administrator of the estate of Lee Hamblin, deceased, to recover of the appellant, Interstate Coal Company, damages for the death of his intestate; it being alleged in the petition that his death was caused by the negligence of the appellant in failing to provide him, as its employe, with a reasonably safe place in which to perform his work. When killed Hamblin was engaged with other employes of the appellant in making repairs upon its coal tipple, and while standing upon a platform used in making the repairs and attempting to remove an iron shaft of the tipple in order that it might be replaced by a larger shaft, a plank of the platform upon which he was standing slipped from a girder upon which it rested, causing him to be thrown to a coal car under and 20 or 25 feet below the platform, which caused his death. The repairing was done at night, and the only light employed was what was furnished by miner's lamps in the caps of the workmen. Appellant's foreman, Trosper, was directing the repairs, and when Hamblin and his assistant Dawson had the shaft on the platform, Hamblin said to Dawson that he would throw it off. Dawson said: "No; it might break it." Hamblin then replied no, that was the way that he and Trosper had done before, and to this Trosper, who was in hearing, said nothing. When thrown by Hamblin the shaft came in contact with the end of the plank which it displaced, and thereby caused Hamblin to fall and be killed. The answer of appellant denied the negligence complained of, and alleged that the death of Hamblin was the result of his own negligence. There have been two trials of this case in the court below. On the first trial appellee recovered of appellant a verdict and judgment for $6,000 damages. On appeal this judgment was reversed for various errors occurring on the trial in the lower court. On the second trial appellee recovered a verdict and judgment against the appellant for $6,000, and the case is again before us for review upon appeal from the last judgment.

The opinion of this court on the first appeal is reported in 152 Ky. 92, 153 S. W. 1, and the following excerpts therefrom will so fully present the issues made by the pleadings and evidence and the salient facts connected with the accident as to render a more elaborate statement of them than we have here given unnecessary.

"This suit was brought by his [Hamblin's] personal representative to recover for his death on the ground that the company was negligent in failing to furnish him a reasonably safe place to work, that the planks in the platform were not nailed, and that the structure was a dangerous one for the purpose for which it was intended. The proof introduced on the trial conduced strongly to show that Hamblin's fall was due to the plank on which he was standing slipping until the end opposite to the place where the shaft was thrown off had slipped off the girder, and that this plank was not fastened or secured in any way. There was proof for the defendant that there was a collar on the shaft, also some other attachments, and that there was a scar on the end of the plank, indicating that the shaft as it fell struck the plank, and so caused it to fall. There was also proof for the defendant that the planks constituting the floor of the platform were securely nailed with large nails six inches long. * * * While it is true that Hamblin would not have been hurt if he had not thrown the shaft off, it is also true that throwing the shaft off would not have caused any trouble if the plank had been securely fastened. Trosper, under whom he was working, had done the work in the same way on a previous occasion, and Trosper, who was in charge of the work, made no objection to his suggestion that they should throw the shaft off. It cannot be said, therefore, that he was acting outside of the scope of his duty, and the circuit court properly refused the peremptory instruction asked by the defendant. * * * The plaintiff proved by one witness [Buchanan] that he was working on this platform about a week before the accident, and while working there had occasion to move one of the planks of the platform. He could not state definitely which one, and that this plank was not nailed, but loose. * * * There was sufficient evidence to take the case to the jury. * * *"

It is insisted for appellant:
(1) That appellee failed to prove the negligence charged in the petition, and that appellant was therefore entitled to a peremptory instruction;
(2) that the injury was caused by the decedent's own negligence;
(3) that the verdict is flagrantly against the evidence;
(4) that certain evidence introduced as expert testimony should have been excluded from the consideration of the jury, because the witnesses furnishing it were not experts, and because the evidence should have been given in chief and not in rebuttal.

The first contention cannot prevail. The evidence introduced in appellee's behalf upon the last trial as to the unsafe and dangerous condition of the platform, caused by the presence thereon of the loose or unsecured plank, and the manner in which the decedent met his death, was substantially the same as was furnished by his witnesses upon the first trial, and the opinion on the former appeal is clear and emphatic in the statement that this evidence was sufficient to take the case to the jury. Indeed, we may add that the fact that the plank slipped from the girder and caused Hamblin to fall of itself furnished some evidence that it was not nailed to the platform, and was sufficient to take the case to the jury upon the question of appellant's negligence.

Appellant introduced on the last trial, in support of its defense that the death of Hamblin was caused by his own negligence in throwing the shaft and causing it to strike and loosen the plank that produced his fall, all the witnesses who testified on that subject in its behalf on the first trial, and in addition a new witness, Blaine Parker, who was not present at the first trial. Frank Burch testified for appellant on the last trial, as he did on the first, that five or six weeks before the death of Hamblin he nailed some planks on the tipple platform, and that there were then no loose planks on it, and this statement was again partially corroborated by his brother. Frank also produced on the last trial a plank which he said was the eighth plank in the platform at the time Hamblin was killed. This plank contained in one end a nail by which he claimed it was fastened to the platform when he removed it during the last trial, which was more than two years after Hamblin's death. Evidently this testimony had no weight with the jury as, according to all the other witnesses, there were not eight planks, but only five or six, in the platform at the time of Hamblin's death. And, besides, the nail in the plank produced was not rusty or discolored, as would have been its condition had it been driven in the plank two years before, but a bright new nail, and smaller than those all the other witnesses agreed had been used in the platform. If there were eight planks on the platform when Burch brought this plank into court, it is fairly evident that the plank produced had been placed there and the nail driven in it long after Hamblin's death. The witnesses, professing any knowledge on the subject, said the plank which caused Hamblin's fall was about the middle of the platform; and, while it is true appellant's new witness, Blaine Parker, testified that he saw this plank immediately after Hamblin's fall, when it was replaced on the platform, and that it had in each end a nail or nails which were bent as though they had been suddenly and violently wrenched from the girders, he was uncorroborated in this by any other witness and flatly contradicted by Buchanan, the present jailer of Knox county, who said he saw the plank when it was seen by Parker, and in fact handed it to Parker; that he then examined it, and there were no nails in it. Buchanan is the same witness who testified on both trials that a week before the death of Hamblin he went upon the platform with a forge to repair the tipple, and that in order to keep one of the four legs of the forge from going in a crack between the planks of the platform he slipped one of the planks, which he found to be loose, against the other.

It is obvious from what has been said that there was no material variance in the evidence heard upon the two trials, and that on the last, as on the first, there was much proof on each side of the main issue; that of appellee being to the effect that the platform upon which the decedent was required to work was, by reason of the loose plank, a dangerous place for the performance of his duties, that the loose plank would not have been moved from its supports in the platform by the shaft coming in contact with it when thrown by Hamblin if it had been properly nailed thereto, and that the negligence of appellant in failing to thus secure the plank was the proximate cause of Hamblin's death. On the other hand, appellant's evidence tended to show that the plank in question was securely fastened to its supports; that the weight of the shaft upon coming in contact with the end of the plank when thrown by Hamblin, was sufficient to have torn it from its fastenings, and that his act in thus attempting to remove the shaft from the platform constituted negligence which so contributed to his death that but for such act he would not have been killed.

It was manifestly the duty of the appellant to use ordinary care to furnish Hamblin a reasonably safe place to perform the work required of him. He had the right to assume that this duty had been or would be performed by appellant. Hamblin was not required to make an inspection of the platform before beginning his work for the purpose of ascertaining whether it was reasonably safe. If, however, its dangerous character was so obvious as that a person of ordinary understanding and judgment, situated as he was, could, by the exercise of ordinary care, have discovered the danger in time to have prevented his death, there should have been no recovery, for in such case it would have been caused by his own negligence. If the plank was, in fact, unnailed to its supports, there is no evidence whatever to the effect that this was so obvious as that it ought to have been known to Hamblin. Indeed, we can well understand why he could not have discovered the defect or danger, as the platform was shown to have been covered by and its cracks practically filled with coal dust, and his work had to be performed by the uncertain light furnished by the lamps carried in the caps of himself and assistant.

On the whole case we see no reason to depart from the conclusion expressed in the opinion on the former appeal that the case should have been submitted to the jury, and, this being true, it follows that in our opinion the trial court did not err in overruling the appellant's motion for a peremptory instruction. It could not properly have been granted, either upon the ground of the failure of proof of negligence on the part of appellant, or upon the ground that the decedent's death was caused by his own want of ordinary care.

Nor is the case one in which it can be said that the verdict is flagrantly against the evidence. "To say of the verdict that it is flagrantly against the evidence means that it is palpably against the evidence. The fact that the evidence is conflicting, or that this court would have made a different finding on the facts, or that in its opinion the verdict is against the weight of the evidence, furnishes no cause for setting it aside; nothing short of its being clearly palpably against the evidence will give the appellate court authority to disturb it on this ground." Tested by this rule, no one, familiar with the weight and effect of evidence, can say that the verdict here is clearly and palpably against the evidence.

We are unable to find any sufficient reason for sustaining appellant's complaint of the admission of the evidence furnished by appellee's witnesses McNiel, Hays, and Jackson. They were permitted to testify, in substance, as to the strength of oak plank, such as was used in the platform from which the decedent fell, to sustain the weight of such an object as the shaft on appellant's tipple, the quality and size of nails required to securely fasten and hold such plank, and to what weight or force they would have to be subjected, when properly nailed, to wrench them from their supports, etc. Before answering as to these matters all three witnesses named appear to have fairly qualified as experts. They are carpenters and have had an experience of from 16 to 40 years in working in timber and with nails, and it is not to be denied that their testimony shows them to possess a wide range of knowledge, both practical and scientific, upon the matters with respect to which they were questioned. But aside from what has been said we do not think the admission of the testimony of these witnesses can be complained of by appellant, or that it constitutes reversible error, because they were introduced for the purpose of refuting and contradicting what had first been testified to by appellant's witness, English, who appears to fall short of being himself an expert. Having by the introduction of English and his testimony with reference to the same matters opened up this line of evidence, appellant is, we think, in all fairness estopped to insist that appellee was permitted to introduce the three witnesses named in rebuttal. It is true that in the opinion on the former appeal we held that the evidence given at appellee's instance by the witnesses Trosper and Buchanan, and perhaps two or three other witnesses, along the same lines, should have been excluded on the trial, and should not be admitted on the last trial, but this was because what they said were mere expressions of opinion from nonexperts.

The principal ground given by the court for the reversal of the judgment on the first appeal was error in the instructions. Upon the last trial the instructions were made to conform to the opinion, and are therefore free from error and not complained of by appellant.

No reason being shown by the record for a reversal, the judgment is affirmed.

Ky.App. 1914.
INTERSTATE COAL CO. v. SHELTON.
169 S.W. 546, 160 Ky. 40


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