Case one of Two
155 Ky. 795
Court of Appeals of Kentucky.
INTERSTATE COAL CO. v. TRIVETT.
Rehearing denied.
Nov. 18, 1913.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
Action by Laura Trivett against the Interstate Coal Company.
Judgment for plaintiff. Defendant appeals.

HOBSON, C. J.
In September, 1910, Charles M. Trivett, who was 19 years old, was injured by a fall of draw slate from the roof of his working place in the mine of the Interstate Coal Company. Laura Trivett, who is his mother, his father being dead, brought this suit against the company to recover for the lost services of her son and for nursing and waiting upon him until he was 21 years of age. By the fall of the slate he sustained serious and painful injuries resulting in paralysis and a permanent injury to one of his legs. She recovered a judgment for $1,000. The company appeals.

The first question made on the appeal is that Charles M. Trivett was not in the service of the coal company, but was working for one Hill, who was an independent contractor. The facts on this subject are, briefly, these: Charles M. Trivett applied to the mine boss for work. The boss was not able to give him employment such as he wanted at that time. Hill was getting the coal out of certain rooms in the mine and loading it on the cars at so much a ton, and, at the suggestion of the boss, Trivett went to work for Hill at $2 a day, to be paid by Hill. It was a part of Hill's duty to take down the draw slate. Trivett went to work in the morning, and on the same day, about 3 o'clock, was injured. While Hill was being paid for what he did by the ton, he worked under the direction of the mine boss. A large part of the coal in Eastern Kentucky is gotten out by the miners by the ton, and not by the day. Hill was simply a miner who was getting out coal for the company and being paid according to the quantity of coal he got out. The company furnished the cars and hauled out the coal. Hill loaded the cars after he had gotten the coal ready to be loaded. Except in the mode of payment Hill in getting out the coal did just as miners generally do in coal mines. He was not an independent contractor, but a servant, whose compensation depended upon the amount of coal he got out; and, while he paid Trivett and the other persons who helped him, the pay was simply taken out of his pay. The mode of payment is not conclusive in cases of this sort as to whether the person is an independent contractor or a servant, although it is a circumstance to be considered with the other facts, and our conclusion is, in view of all the circumstances under which the work was done, that Hill was a servant of the company, and that Trivett was simply working under him. The circuit court properly so held.

It is objected that the petition states no cause of action, because it does not aver that Trivett was in the service of the company. The petition states that the company employed her son to shoot down and load coal in one of its mines at Trosper, Ky. By the answer this allegation is denied, and it is alleged that the plaintiff's son was not employed by the defendant in any capacity as a servant in or about its mine at the time she alleged he was injured. The affirmative allegations of the answer were denied by a reply, thus making up the issue on this question. If there was any defect in the petition it was cured by the allegations of the answer and reply.

It is also insisted that the petition is insufficient in that it does not show that Trivett was employed without his mother's consent, or that the company knew that he was an infant. But this is not an action against defendant for employing an infant without his parent's consent and thus depriving the parent of his services. It is an action for a negligent injury of the infant. Where an infant is injured through the negligence of another, two distinct causes of action arise; one in favor of the infant for his pain and suffering and the permanent impairment of his power to earn money, after reaching the age of 21 years; the other in favor of the parent for the loss of the infant's services until he reaches maturity, and for nursing and taking care of him, and expenses for medicines and medical services. This is an action by the mother, the father being dead, to recover for the negligent injury of her infant son; and the circuit court properly confined the damages to the items indicated. It was not necessary that the mother should allege that her son was employed without her consent or that the defendant knew that he was an infant. She recovers only a part of what the person injured might have recovered if he had not been an infant; and in his separate action the infant may recover for the other items.

In December, 1911, the company paid the mother and son $100 in settlement of the claim, and this settlement was pleaded in bar of the action. The money was tendered to the coal company in the suit by the son, and paid into court, and, this having been done, it was not necessary that it should be paid into court again in this action; the two actions being in the same court and pending at the same time. While the proof as to this settlement is conflicting, we cannot say that the verdict finding that the settlement was obtained by fraud is so against the weight of the evidence as to warrant us in disturbing it. The settlement was so inadequate to the injury received as to raise a presumption against its validity.

The boy lived with his mother until a week before the injury, when he left her house in search of work. In a few weeks after he was hurt. She then came and took him home and took care of him, nursing him through many months of painful sickness. There is nothing in the evidence sufficient to show that the mother had emancipated her son; it only shows that the boy, not being able to get work where he was, had left his mother's home without her consent in search of work, and a few days afterwards was hurt. While an emancipation may be implied from circumstances, there was no action by the mother here relinquishing her right to her son's services.

While the instructions of the court are long, and the law of the case might have been more briefly stated, we do not find in them substantial error to the prejudice of appellant. The facts of the case are that the room at which the boy was put to work was dangerous; the roof was bad, and this was known to the mine boss as well as to Hill. The draw slate had not been taken down, and the boy, who was inexperienced, was allowed to work under it without warning of the danger. Hill says that he noticed a crack in the draw slate, and told the boy that there was danger of its falling, and that he would go and get a crowbar and take it down; that, while he was gone to get a crowbar, the slate fell on the boy. But he says he does not know whether the boy heard what he said before he left him. It was incumbent on him seeing and knowing the danger to inform the boy of it, and he should have given the information in such a way as to apprise the boy of the danger. The fact is that the boy, not receiving the warning, remained at work, and was hurt by the slate before Hill returned with the crowbar. The boy says that Hill gave him no warning, and his testimony on this subject is not contradicted by Hill; for he says he does not know whether the boy heard him or not. Under the facts of the case, the defendant was properly held liable, and the verdict is not excessive under the evidence.

Judgment affirmed.

Ky.App. 1913.
INTERSTATE COAL CO. v. TRIVETT.
160 S.W. 731, 155 Ky. 795

Case Two of Two
Court of Appeals of Kentucky.
INTERSTATE COAL CO. v. TRIVETT.
Rehearing denied.
Nov. 18, 1913.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
Action by C. M. Trivett against the Interstate Coal Company.
Judgment for plaintiff. Defendant appeals.

CLAY, C.
Plaintiff, C. M. Trivett, while at work in the mines of the defendant, Interstate Coal Company, was struck by a piece of falling slate and severely injured. In this action for damages he recovered a verdict and judgment of $1,750. The coal company appeals.

The defendant owns and operates a coal mine at Trosper, in Knox county, Ky. On September 18, 1910, plaintiff arrived from his home at Dante, Va., at defendant's mines, and sought employment. Not caring to dig or load coal, he asked for "company work," or work by the day. Not being able to furnish him this character of employment, the mine foreman, Williams, took him into the mine and showed him rooms 31 and 33, and offered him a job of cutting and loading coal until the mine could furnish him the kind of work he desired. The two rooms were not in a condition to begin work in at the time, as the slate had fallen, so the foreman offered to pay plaintiff and a friend who had accompanied him to clean up the rooms so that they could be worked. Not caring to do this, plaintiff and his friend went out to the commissary, where they met a man by the name of Hill, who had a contract with the company to load the coal in rooms 31 and 33 at a stipulated price per ton. Hill wanted somebody to work for him, so plaintiff and his friend saw Williams, the foreman, and asked him if he had any objection to their working for Hill until they could get company work. Williams said he had no objection. Plaintiff and his friend went to work for Hill on Wednesday night and loaded several cars. When they went to work the rooms had been properly cleaned up. After working there Wednesday night, plaintiff decided that he would not load coal any more. On Monday plaintiff went to the drum house. There he saw the foreman, Williams, and asked if he had a job ready for him. Williams told him that he did not, but that he could go and load coal for Mr. Hill that day, and maybe he would have a job for him the next day. Plaintiff asked him if he had any timbers in the place. Williams said he did not. Plaintiff told him that they had to have timbers. Williams said: "That is all right; go ahead, and I will send you timbers in there to-day." This conversation took place at the incline, about 100 yards from the drift mouth. Williams said he thought it would be safe to go ahead. When plaintiff went in he did not expect to dig coal. On going in they loaded the coal in room 33. While loading the car Hill went in room 31. After dinner they went back to room 31, and some time in the evening cleaned it up and loaded one more car. They had the car about loaded. There was a loose piece of coal about two cuts, or eight or ten feet, from the face. Plaintiff told Hill he would pick off the lump of coal and put it in the car, and Hill said he would go and get a bar and straighten a piece of track that was broken. Plaintiff picked up his pick and sounded the roof and put his hand against the top for the purpose of seeing whether it was solid or drummy. The draw slate was sandstone and seemed solid. Plaintiff looked all around it and under it, but could find no cracks. His examination revealed nothing wrong with it. He then stepped under the slate a little piece from the crack. He was then eight or ten feet from the face. He hit one lick with the pick into the lump of coal. He then drew back and struck another lick, when a large piece of slate fell on him, severely injuring him. When he examined the slate he used the pick. Mr. Williams said to him that these rooms were in a safe condition. Plaintiff had never had any previous experience in the mine. He had run an electric motor in the mines of West Virginia. At the time of his injury he was not 21 years of age. Mr. Williams did not send any props to either room. If props had been sent he could and would have propped the slate. At the time of the injury he was working in a narrow neck in that room, eight or ten feet wide. Back from him the room was considerably wider. The room could have been propped on each side, within eight feet of the face, and a prop could have been set in the middle. One prop would have been sufficient to hold the slate that fell on him. On cross-examination witness stated the slate had been falling out some seven or eight feet back. Plaintiff saw that it had been taken up to that place, and saw the slate there. He worked on it nearly all of the day Monday, knowing that this was the case. He did this because he was working by the day and did not know the slate was going to fall. When he first went to rooms 31 and 33 with Mr. Williams he saw the roof was falling in these rooms. At that time it had already fallen.

According to the evidence for the defendant, room 31 had been driven in about 150 feet from the fourth right entry. The width of this room across the face of the coal was about 25 feet. The permanent roof--that is, the roof after the draw slate has been taken down--is called the "bad top." They were driving on a narrow neck about eight feet wide. At the time of plaintiff's injury this work had progressed about 18 feet. It was in this neck, and near the face of the coal he was mining, that plaintiff was injured by the falling draw slate. The roof in the narrow neck was all right. Several witnesses testified that it was not only not customary, but was not practicable, to prop the draw slate where plaintiff was at work. The draw slate is a layer of slate between the roof of the mine and the coal. It is a shelly, disintegrating substance, which often falls when the coal is shot down, and is always in danger of falling when the coal is taken out and it is permitted to remain. It is the universal mining custom to take it down. The air slacks it easily and quickly. It cannot be securely propped. It is the coal digger's duty to take down draw slate. This was a part of Hill's contract. Witness Williams did not have any positive recollection as to whether he said anything to plaintiff about furnishing props or not.

Kentucky Statutes, is as follows: "Each owner, lessee or operator of every mine to which the mining laws of the state apply, shall provide and furnish to the miners employed in said mine a sufficient number of caps and props, said props to be sawed square at each end, to be used by said 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 is the duty of said miners to keep the roof propped, after the miner has selected and worked the same."

There is practically no denial of the fact that plaintiff made a request for props. Plaintiff says that if he had had the props he could and would have propped the slate. Defendant contends that the duty of furnishing props applies only where it is necessary to use them to support the permanent roof of the mine, and not to a case of mere draw slate, which the evidence shows it was neither practicable nor customary to prop. We are not, however, disposed to give the statute such a narrow construction. The protection of the miner is the chief purpose of the statute. It may often happen that draw slate may be propped while the miner is engaged in getting out the coal. Where the miner's request for props is not complied with, and the miner is injured, the question whether or not the failure to furnish the props was the proximate cause of his injuries will ordinarily be for the jury. In the present case plaintiff says that if the props had been furnished he could and would have propped the draw slate, and had he done so he would not have been injured. On the other hand, the evidence for the defendant is that it was neither customary nor practicable to prop the draw slate. Under these circumstances the proximate cause of plaintiff's injury was a question for the jury.

Nor can we say as a matter of law that plaintiff was guilty of contributory negligence. While he had some experience in mines in West Virginia in other employments, he had never had any previous experience in defendant's mine. At the time of his injury he was not 20 years of age. He says that the mine foreman assured him that the place where he was put to work was safe. He also says that he examined and tested the slate and there was nothing in its appearance to indicate that it would fall. Considering his lack of experience and the short time he had been at work, we cannot say that the danger from the draw slate was so obvious that a person of ordinary prudence would have refused to go on with the work.

After the suit was instituted, defendant effected a compromise with plaintiff and his mother by paying him $100. By amended answer this compromise was pleaded. Plaintiff alleged that the compromise was obtained by fraud, and that he was an infant at the time it was made. His evidence is to the effect that a physician representing defendant told him that his attorneys had been bought up by the coal company and that the suit would be dismissed. There was also evidence tending to show that plaintiff, at the time of the alleged settlement, was an infant. Manifestly, the settlement was not valid if obtained by fraud, or if plaintiff was an infant when the settlement was made. This issue, we think, was properly submitted to the jury. Defendant, however, insists that plaintiff could not continue the prosecution of his suit because no proper tender of the amount paid him was made to defendant. It does appear, however, that the attorneys for plaintiff gave their personal checks to the clerk of the court for the sum of $103.50, which represented the amount of the compromise, together with interest thereon. An order of court recites that this sum was paid into court. That the clerk accepted checks instead of cash is immaterial. So far as defendant was concerned, there was a payment of the money into court, and therefore a restoration of the amount of the compromise. We therefore conclude that the tender was sufficient to enable plaintiff to continue the prosecution of the suit.

The instructions are complained of. It is true that they are too long, and therefore subject to verbal criticism, but on the whole we conclude that the real issues in the case, viz., whether or not defendant's failure to furnish the props was the proximate cause of plaintiff's injury, and whether or not plaintiff himself was guilty of contributory negligence, were properly submitted to the jury.

The evidence fails to show that Hill, who at the instance and direction of defendant's foreman employed plaintiff, was an independent contractor. Though paid by the ton, the defendant retained control over the manner and method of doing the work. Moreover, we have frequently held that the owner or operator of a mine cannot relieve himself of the duties imposed by statute for the protection of human life by entering into contracts with third parties to do the work at so much a ton.

Finding in the record no error prejudicial to the substantial rights of the defendant, it follows that the judgment should be affirmed, and it so ordered.

Ky.App. 1913.
INTERSTATE COAL CO. v. TRIVETT.
160 S.W. 728, 155 Ky. 825


     

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