166 Ky. 776
Court of Appeals of Kentucky.
Nov. 18, 1915.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by James E. Prichard's administrator against the Carter Coal Company.
From a judgment for plaintiff, defendant appeals.

This suit was brought by the administrator of James E. Prichard against the Carter Coal Company, a Delaware corporation, and Mike Donahue, its mine boss who was a citizen of Kentucky, to recover damages for the death of James E. Prichard while in the employment of the company and working under the direction and control of the defendant Donahue. At the time of his death, Prichard was a track man, engaged in placing a derailed car on the track, and while so engaged Prichard and two other men were killed by a large and heavy piece of slate that fell from the roof of the mine. On the trial of the case, there was a directed verdict as to Donahue and a judgment against the coal company.

On this appeal of the coal company, one assignment of error relates to the refusal of the trial court to remove the action to the federal court when the removal petition was first filed and also upon a renewal of the motion, at the conclusion of the evidence, when the court determined that the plaintiff had failed to make out a case against Donahue and directed a verdict in his behalf. The plaintiff's petition charged that the Carter Coal Company was the owner and operator of the mine in which Prichard came to his death, and:
That the defendant Donahue "was a servant and employe of the defendant company, working for it in the operation of its mine, acting in the capacity of a foreman or boss, and directing other servants of said company, including the said James E. Prichard, in the performance of their duties at work in said mine while at work for said company. * * * That he was put to work by the defendant company and by the mine foreman, Mike Donahue, to replace a car on the track, which was wrecked and off the rails of the track in its mine, and while so engaged a large quantity of slate, stone, and earth fell upon him and so bruised and mangled him that he immediately died. * * * That the decedent was ignorant and inexperienced in mining and did not know of the dangers and hazards attending the work at which he was employed at the time of his injury, and the defendant Donahue knew that the said Prichard was ignorant and inexperienced and did not know of the dangers and hazards attendant upon the duties required of him as aforesaid. Nor did the defendant company or Donahue inform him of the dangerous character of the work at which he was placed, or warn or caution him of the dangers attendant thereto. He said that the place where the said James E. Prichard was placed to work and where he received the injuries aforesaid was in a highly dangerous and unsafe place for the duties required of him, and was known by the defendant company and the mine foreman and boss, Donahue, to be highly dangerous and unsafe; but its unsafe condition was not known to him. He says that it was the duty of the defendant company and the defendant Donahue to inspect and make reasonably safe the working place of the said Prichard, which they failed to do, and that it was not the duty of the said Prichard to make safe his said working place. The plaintiff says that the injuries to the said Prichard were brought about and caused alone by reason of the joint and concurrent gross negligence of the defendant company, and the defendant Donahue, in failing to inform or instruct said Prichard in the duties required of him and of the dangerous character of the work at which he was placed, and warn or caution him of the danger and hazard attendant upon the work required of him."

In seasonable time after the defendants had been brought before the court by service of process, and before the Carter Coal Company had otherwise entered its appearance to the action, it moved the trial court to transfer the action to the federal court, upon the ground that it was a citizen of the state of Delaware, and averred that:
"The plaintiff, C. P. Prichard, has made the defendant Mike Donahue a party defendant herein with this petitioner for the sole purpose of undertaking to deprive this petitioner of the right to remove the said action to the United States District Court for the Eastern District of Kentucky for trial, and to fix the only jurisdiction for said trial in the Knox circuit court, and all of same is done willfully and wrongfully, and with fraudulent intent, while said plaintiff and his attorney know that said Mike Donahue is not liable in any way to plaintiff, and in no way concurred in any negligence, if any there was, which brought about the death of the decedent, Jas. E. Prichard, and that said Mike Donahue is bound herein as a party with the fraudulent intent and for no other purpose, and without reasonable grounds for plaintiff and his attorney to believe that the said Mike Donahue is liable to plaintiff for the death of the decedent or that he was at all negligent in any way resulting in said death, and all of which is wrongful, unlawful, and fraudulent. The said action and controversy is wholly and entirely between plaintiff and your petitioner, and your petitioner's rights and the rights of the plaintiff herein can be determined wholly and entirely separate and independent of any cause of action, if any there be, against the defendant Mike Donahue."

Afterwards the motion to remove was overruled, and thereupon the defendants filed a joint answer traversing all the averments of the petition and pleading that the decedent assumed the risk of the injuries that caused his death; that his death was the result of an unavoidable accident; and that it was brought about by reason of his contributory negligence. The parties then went to trial, and when at the conclusion of the evidence for the plaintiff the trial judge erroneously, as we think, ordered a directed verdict as to Donahue, the motion to remove the action was renewed on the petition filed at the beginning of the case. This motion was overruled, and we think the ruling of the court was correct in overruling the motion first made as well as the motion made at the conclusion of the plaintiff's evidence.

In speaking of the joint liability of the employer and its superior servant to an employe who is injured or killed by the acts of omission or commission on the part of the superior servant involving a breach of duty to the injured party:
"In some jurisdictions the servant is not held accountable to third persons for nonfeasance, but is for misfeasance; but a contrary rule, and one that is in accord with the weight of modern authority, prevails in this state. We do not recognize any distinction, so far as the accountability of the servant is concerned, between acts of misfeasance and nonfeasance. If a servant performs in an unlawful manner an act that results in injury to a third person, or if a servant fails to observe a duty that he owes to third persons, and injury results from his fault of commission or omission, he is liable in damages. There is no reason for making a distinction between acts of commission and omission when each involves a breach of duty. The servant is not personally liable in either case because the breach of duty was committed by him while acting in the capacity of servant, but responsibility attaches to him as an individual wrongdoer without respect to the position in which he acts or the relation he bears to some other person. It is the fact that the servant is guilty of a wrongful or negligent act amounting to a breach of duty that he owes to the injured person that makes him liable. It is not at all material whether his wrongful or negligent act is committed in an affirmative or willful manner, or results from mere nonattention to a duty that he owes to third persons, and that it is entirely within his power to perform or omit to perform. There are innumerable situations and conditions presented in the everyday affairs of life that make it the duty of persons to so act as not to harm others, and when any person, whatever his position or relation in life may be, fails, from negligence, inattention, or willfulness, to perform the duty imposed, he will be liable."

Section 6 of the Kentucky Statutes, providing, in part, that:
"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in every such case, damages may be recovered for such death from the person or persons, company or companies, corporation or corporations, their agents or servants, causing the same."

So that, under the pleading and evidence, the trial court committed error in directing a verdict as to Donahue. But as the ruling in ordering a directed verdict as to Donahue was erroneous, the status of the coal company should be regarded the same as if the motion to direct a verdict in regard to Donahue had been overruled. The coal company will not be allowed to avail itself of this ruling of the trial court to secure an advantage that it could not have obtained except for this erroneous ruling.

"Taking these cases together, we think it fairly appears from them that, where there is a joint cause of action against defendants resident of the same state with the plaintiff and a nonresident defendant, it must appear to make the case a removable one as to a nonresident defendant because of dismissal as to resident defendants, that the discontinuance as to such defendants was voluntary on the part of the plaintiff, and that such action has taken the resident defendants out of the case, so as to leave a controversy wholly between the plaintiff and the nonresident defendant. * * * The ruling of the court sustaining the demurrer to the evidence interposed by the resident defendants practically determined the question of their liability, and under the Missouri practice, as we understand it, there was a right to take an involuntary nonsuit with leave to move to set it aside, and when that motion was overruled there was a remedy by appeal to the Supreme Court of Missouri, as was done in the present case, and the order is not final until the appellate court passes upon it. We cannot agree to the contention that upon this record, when the court had sustained the demurrers to the evidence as to Martin and Eilers and plaintiff took the nonsuit, the case was so far terminated as between the plaintiff and the resident defendants as to leave a removable controversy wholly between the plaintiff and a nonresident corporation. The element upon which the decision in the Powers Case, supra, depended--the voluntary dismissal and consequent conclusion of the suit in the state court as to the resident defendants--is not present in this case."

Adopting the view expressed by the Supreme Court in this case, we think that, when the plaintiff properly states a joint cause of action against a nonresident and a resident defendant, the fact that the trial court gives a peremptory instruction as to the resident defendant, whether this ruling be erroneous or not, does not then entitle a nonresident defendant to removal of the action on the ground of diverse citizenship, if the plaintiff excepts, as he may do, to the ruling of the court releasing the resident defendant and prosecutes, as he may do, from such ruling an original appeal to this court or a cross-appeal on the appeal of the defendant. At any rate, if the plaintiff excepts to the ruling releasing the resident defendant, and the correctness of this ruling is brought to the attention of this court either on the appeal of the plaintiff or on the appeal of the nonresident defendant from a judgment against it, it could not be said that the resident defendant, who was properly joined in the first instance, did not remain a party defendant until this court had finally determined the correctness of the ruling of the trial court. So that in no state of case that we can think of is the coal company in a position to complain of the ruling of the trial court in refusing to remove the action when the verdict had gone against Donahue. If this directed verdict had been properly ordered by the trial court, Donahue, who was properly joined as a defendant, would continue to remain a defendant until this court, on appeal, had approved the ruling of the trial court in directing a verdict.

It is urged, however, that the trial court should have directed a verdict in favor of the coal company on the ground that the evidence showed it was the duty of the deceased to inspect the roof of the mine, and therefore, if the roof was in an unsafe condition, his failure to observe it and save himself from danger was such contributory negligence as would defeat a recovery.

The evidence was somewhat conflicting as to the duty of inspection imposed upon the deceased; but the weight of it, we think, tends to show that it was not his duty to inspect the mine at the place where he was working. The coal company had inspectors, the chief of whom was Donahue, the mine boss. It also had timbermen, and Prichard was not engaged in mining coal at the time of his death, but was engaged as a track man, and the custom as to the duty of the miners engaged in removing coal to inspect the roof did not extend to laborers such as Prichard who were engaged in a distinct character of work from that of mining coal.

It is true it was the duty of the deceased to exercise ordinary care for his own safety, although not charged with the duty of inspection, and if the unsafe condition of the roof at the place where he was working was so obvious as that a person of ordinary intelligence, in the exercise of ordinary care for his own safety, could not have failed to discover it, this would have amounted to such contributory negligence as would have defeated a recovery. This, however, was a question of fact that should have been and was submitted to the jury. The evidence that the duty of inspecting the roof of the mine at the place where he was working rested upon the deceased was not at all so convincing as to justify the court, as a matter of law, to direct a verdict for the coal company. Nor was the evidence as to the dangerous and unsafe condition of the roof of the mine so conclusive as to justify the legal presumption that the deceased, in the exercise of ordinary care, should have discovered it. There was evidence of the dangerous condition of the roof and evidence that this condition had been brought to the attention of one of the men whose duty it was to inspect and protect the roof. There was also evidence tending to show that the roof at this place was not sufficiently protected by timber, and that Donahue, who was the chief inspector, had not examined the roof on the day the slate fell.

A further contention of the coal company is that if the duty of inspecting the roof of the mine in a proper and sufficient manner devolved upon it, having discharged its duty in this respect, it should not be held accountable for an accident that happened notwithstanding its careful inspection. In support of this view, there was evidence tending to show that on the day preceding the accident the roof at this place was inspected and found to be in a safe condition. There was further evidence tending to show that the piece of slate that fell was so large and thick that the usual and customary inspection would not have disclosed its defective condition. Resting on this evidence, the argument is made: First, that the coal company had fulfilled its duty of inspection and exercised the required care in respect thereto; and, second, that when the most careful inspection would not have disclosed the defect in the roof, the injuries resulting from the fall of the slate must be attributable to accidental causes that no amount of care could have guarded against.

The answer to this argument is that it was the duty of the coal company to exercise ordinary care to furnish to the deceased a reasonably safe place in which to work, and this duty carried with it the duty of inspection and the duty of supporting the roof with timbers in the event an inspection disclosed the necessity for timbering. And there was evidence conducing to show that the roof was unsafe and that this condition, by the exercise of ordinary care, could have been discovered in time to have protected the roof, if ordinary care had been exercised to adopt this method of safety after the attention of the coal company was called to the necessity for supporting the roof.

In cases like this, where the law imposes upon the mineowner the duty of inspection, and the further duty of supporting the roof by timber if inspection shows this to be necessary, it cannot escape liability for accident unless it appears that the duty of inspection was imposed upon the injured person, or it is shown that the danger was so obvious as that a person of ordinary intelligence could, in the exercise of ordinary care, have discovered the peril. It may be that the roof was inspected, but this was not conclusive evidence of the exercise of the required degree of care on the part of the coal company. It does not follow, from the mere fact that the inspector decides that the roof is safe and therefore supports are not necessary, that this will exonerate the mineowner, in the event an injury happens by the falling in of the roof.

"If in cases like this the master could be relieved of liability upon the statement of the person charged with the duty of inspection that in his judgment the place was safe, there would be but few cases in which an employe who relied upon the inspection, and was injured, could recover, as it is fair to assume that in every instance the person charged with the duty of inspection would say that he had performed it. But his statement is not conclusive. It was a question for the jury to say from the evidence whether or not the place was reasonably safe. And in considering this question they had the right to give such weight as they deemed proper to the statement of the inspector. They may or may not believe from it that the master discharged his duty in furnishing a reasonably safe place."

"The jury have the right to hear and consider, not only the evidence from the mouths of witnesses as to what they did and what was done, but they have also the right to hear and consider other evidence from witnesses who are qualified to testify as to the physical condition of the place or appliance before, at the time, and immediately after the accident, and the jury may from the facts and circumstances thus proven be warranted in concluding that they are entitled to more weight than the personal evidence of the witnesses whose testimony was in contradiction of these facts and circumstances."

The instructions are complained of, but we think they submitted to the jury all the substantial issues in the case.

The judgment is affirmed.

Ky.App. 1915.
179 S.W. 1038, 166 Ky. 776


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