140 Ky. 323
Court of Appeals of Kentucky.
Oct. 19, 1910.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by Milton Goins against the North Jellico Coal Company.
From a judgment dismissing the petition, plaintiff appeals.

Milton Goins, while getting out coal for the North Jellico Coal Company in a room in its mine, was injured by a piece of slate falling on him, and brought this suit against the company to recover for his injuries. At the conclusion of the evidence offered by him, the defendant moved the court to instruct the jury peremptorily to find for it. The court took the motion under advisement, and directed the defendant to go on with its evidence. At the conclusion of the defendant's evidence, the court sustained the motion, and the jury having found for the defendant, and the plaintiff's petition being dismissed, he appeals.

When the plaintiff introduces his evidence, and at its conclusion the defendant moves the court to instruct the jury peremptorily to find for it, whether the motion is then determined by the court or not, it must be decided on the plaintiff's evidence without reference to any facts shown by the evidence introduced on behalf of the defendant; for, in so far as there is a conflict in the evidence, the question, if material, is for the jury. The case before us therefore must be determined on the plaintiff's evidence without reference to any fact shown by the testimony for the defendant. The facts shown by the plaintiff's testimony are these: Goins was an experienced miner, and had been at work as a miner seven or eight years. He had worked for the defendant five or six years. He and his brother, who was also an experienced miner, had entered into a contract with the defendant to mine for it coal in several rooms in one part of its mine. They were paid by the ton for the coal they got out, and they employed their own assistants. They cut under the coal with a machine furnished by the defendant. They then blew the coal down, and, after it was blown down, they loaded it on cars. They furnished all the tools they used except the machine for cutting under the coal. It was their duty to get the slate down off the roof of the mine after the coal was blown down, and, after they got the slate down, certain hands in the mine, known as gin hands, moved the slate back. The gin hands had nothing to do with the getting down of the slate. Goins and his brother got the slate down and notified the gin hands when they were ready for them to move the slate out of their way. There was several inches of slate above the coal which had to be taken down after a blast was made. About 150 men worked in the mine. There were 10 or 15 gin hands who worked under a boss, and waited on all the miners in the way indicated. On the morning of the accident, Goins marked at the mouth of the mine some posts to be brought in; the custom being for the miners to mark the posts and leave them there, and they were then brought in on the motor to the room indicated by the marks. He wished some caps also, but there were no caps there to be marked. As he went into his room on the motor Goins saw the gin boss at the tool house, and asked him to send him a gin hand, telling him that he had broken the handle out of his hammer, and that he could not gin any slate that day. The boss said that he would send a ginman, or words to that effect. Goins went on to his room and commenced loading the coal which he had blown down the day before. He set up three timbers which he had, and did not set up any more because he had no more; those that he had marked not having been brought in. When he had worked four or five hours, a piece of slate 15 feet long and 5 feet wide fell from the roof, catching him under it and inflicting painful injuries. The ginman had not been sent. It is insisted for him that he was entitled to recover on two grounds: First, because the gin boss had not sent the ginman, as he had promised; second, because the company had failed to furnish him with posts and caps, as it was required to do.

1. The plaintiff and his brother, who are the only witnesses introduced on his behalf, both state very clearly what they mean by ginning slate. To gin slate, as they express it, is to remove it out of the way. The ginmen were so called because they ginned the slate. They had nothing to do with the slate until the miners knocked it down and broke it up so that it could be moved. The purpose of having the ginmen was to enable the miners to put in all their time on the coal without consuming their time in moving the slate out of their way. The hammer which Goins referred to was his own hammer, and the fact that he had broken the handle in his own hammer imposed no duty on the defendant. There was nothing for a ginman to do in Goins' room until Goins knocked down the slate, and he had knocked none down. He used a crowbar in getting the slate down. The hammer was used in breaking it up after it was down. The fact that the ginman did not come as promised did not warrant him in working under the overhanging slate without knocking it down. The failure to send the ginman contributed in no wise to his injury. It was not the duty of the ginman to keep the room safe. It was only his duty to move the slate out of the way of the miners after it was down. The failure, therefore, of the boss to send the ginman in no wise affected the responsibility of the defendant for Goins' injury.

2. The statute provides: "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." If a mineowner fails to comply with the statute, and by reason of such failure the miner is injured, he may recover damages provided he has himself used ordinary care. But, where the miner knows the danger and willfully takes the risk, the failure of the owner to furnish the props and caps is not the proximate cause of his injury. Damages can be recovered for negligence or wrongful act only where the loss suffered was the proximate result of the negligence or wrongful act. So the question is, Was the failure to furnish the props and caps the proximate cause of the plaintiff's injury? The props and caps are ordinarily used to keep the top of the mine from settling after the coal and slate have been taken out. Ordinarily the slate is knocked down before the props which are permanent are put up. Goins when he went to work knew that he had not knocked down the slate, and he worked there four or five hours with the slate in this condition. He and his brother had always pulled the slate down either with a pick or crowbar. When he went to work, he knew that the slate had not been taken down. It was slate that had to come down, and he knew it. He could see the edge of the slate from three to five inches thick next to the part where he had pulled down the slate the day before. He knew the slate was liable to fall, and so put under it the three props he had, and says he would have put more if he had had them. He admits he told several people who asked him how he came to be hurt that it was his fault that he got hurt, and in this view we concur on his own evidence. He was to decide when the roof was safe. It was his duty to make it safe if it was unsafe. His own evidence shows that he knew it was unsafe, and that with this knowledge he undertook to get out the coal that was on the floor before making it safe or knocking down the loose slate overhead, because the slate when knocked down would be in his way in getting out the coal. He trusted that the slate would not fall before he got through; but in this he took the risk. He knew other props had not been put in. The proximate cause of his injury was not the failure of the company to furnish caps and props, but his failure to make the roof safe or to knock down the slate it was his duty to knock down, and his working under it when he knew its condition. He had other places where he could work in safety.

Judgment affirmed.

Ky.App. 1910.
131 S.W. 28, 140 Ky. 323

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