
    Case 38 — Action to Recover Damages for Personal Injuries-
    Dec. 19.
    Koltinsky, &c. v. Wood.
    APPEAL FROM DAVIESS CIRCUIT COURT.
    JUDGMENT FOR PLAINTIFF AND DEFENDANT APPEALS.
    AFFIRMED.
    Master and Servant — Workers in Mine — Riding in Car to Place of Work — Defective Timbers Supporting Roof of Mine — Intervening Cause.
    Held: 1. Where the workers in -a mine were accustomed to ride in a -car to their place of work, for the reason -that there w-as water under-foot, they had a right to be on the ear, and whether plaintiff, who was injured while thus riding on the. car, used ordinary care in remaining on -it. was -a question for the jury.
    2. Where the timbers supporting the roof in the entry to a mine were known by the master to be rotten an-d unsafe, he was liable for an' -injury to a servant riding in a oar to his work, resulting from the shying of the mule drawing the car, so as tq cause it to strike a post; it appearing th-at if the timbers had been sound the injury would n-ot have happened.
    WILFORD CARRICO and WEIR & WEIR, for appellants.
    POINTS AND AUTHORITIES.
    1. Wood, the appellee, a coal miner, recovered a verdict and judgment for an alleged injury, alleged to be the result of the gross negligence of -the appellants, mine owners, in permitting the mines to be out -of repair and in a dangerous condition. ,
    2. The undisputed evidence, -and all the evidence, establishes conclusively, that the alleged injuries resulted from the gross and willful negligence of the appellee and not from -the negligence of appellants.
    3. The master (appellants) are not liable to the servant (apipellee) for injuries resulting from the negligence o-f the servants, or a fellow servant. Kane v. R. R. Company, 128 U. S., 91; R. R. Company v. Jones, 95 U. S., 443; Bunt v. Mining Company, 138 U. S., 483; Doyle v. Swifts Iron Works, 5 Ky. R., 59; L. & N. R. R. Company v. Shivel-1, 13 Ky. Rep., 902; Cunningham v. By. Company, 17 Fed. Rep., 882; L. 
      & N. R. R. Company v. Walker, 19 Ky. Rep., 369;' Ashland Coal & Iron Ry. Company v. Wallace, 19 Ky. Rep., 849.
    ELI H. BROWN, for appellee.
    POINTS AND AUTHORITIES.
    1. The record shows .appellants to have heen guilty of gross, reckless negligence.
    2. App"ellee was not negligent, and did not contribute to ■his injuries.
    3. The only issues were as to the negligence of the respective parties.
    4. No issue was .tendered or made as to the negligence of ■a fellow -servant.
    5. The only question before this -court, on this appeal, is whether there was any evidence adduced from which the jury might have found their verdict.
    6. If appellants desired to defend, or avoid liability, because of -the negligence -of -a fellow servant, they could have presented that defense by appropriate pleading, hut not other-wise. Civil Code, sec. 114.
    7. Jager, the ear driver and appellee, a coal miner, were-not -co-equals in the -service of appellants. Gr'eer v. L. & N. R. R. Co., 94 Ky., 169; Ky. Cent. Ry. Co. v. Ryle, 13 Rep., (Ky.) 862; L. & N. R. R. Co. v. Davis, 14 Rep., (Ky.) 716.
    (8) The court will not reverse the finding of facts by the-jury, there being ample ■ evidence upon which they could have, found their verdict. McCormick H. M. Co v. Disney, 12 R., 139; Thompson v. Thompson, 93 Ky., 435. Sudduth v. L. & N.. R. R. Co., 16 R., 630.
   Opinion of the court by

JUDGE HOBSON —

Affirming.

Appellants operate a coal mine in Ohio- county, and appellee was a miner in their service. On December 18,. 1899, he was injured by some .slate falling on him -from the roof. He filed this suit to recover for Ms injuries, and recovered judgment for $500.. While there is some conflict in the testimony, the evidence for appellee, if not the weight of the evidence, tended to show these facts: The mine was in bad condition when appellants took charge of it. The miners complained that it was not' safe,. ■and promise was made that the defect would be remedied. The complaint related to the rottenness and unsafeness of the timbers supporting the roof in the entry. This occurred before appellee was employed. When he was employed be was assured that the mine was all right. On the first morning that he went to work he wias told by the foreman to get in the car and ride in to the place he was to work. The cars were pulled by mules, and there was a driver to each car. All the miners went to their work in this way. This was the rule of the mine, for the reason that there was water underfoot, .and the men did not like to work in their wet clothes all day. At night they walked out as the outcoming cars were loaded, and they could walk in if they saw proper. On the morning when appellee was hurt, he and five other miners got in the front car. The mule shied as it was started by the driver, and pulled the car against one of the posts supporting the roof. The post was rotten, and snapped in two. The timbers overhead were also rotten, and a large quantity of loose slate and rock, when the post broke, came down with the timbers upon the men in the car, inflicting on appellee the injury sued for. The proof is conflicting as to the cause of the mule’s shying. The driver says it was wild; but the preponderance of the proof would show that the driver’ was drinking, and that he kicked the.mule just as he got on the car, and caused it to shy.

Appellee had a right to be on the car, and whether he used ordinary care in remaining on it, was a question for the jury. It is earnestly insisted that there was no evidence of negligence on the part of appellant; that it was not responsible for the shying of the mule, or the negligence of the driver, if he was negligent; and that, as appellee was riding in the car to save himself the trouble of walking, lie took the risk of this mode of conveyance, -as the company was under no obligations to carry him to his work. But the proof for the appellant shows that if the post and timbers had not been rotten the injury would not have occurred, notwithstanding the shying of the mule and the running of the oar against the post. In other words, the testimony is to the effect that if thése timbers had been sound as they should have been, the injury would not have happened.

-It is the duty of the master to provide for the1 use of his-servants safe and sound material, instruments and accommodations, a reasonably safe place to do their work, and 'safe means of access and departure. 1 Shear. & R. Neg, 191. He is also bound to inspect these things from time to time, and use ordinary care to discover and repair defects in them. The defects in the timber- in this entry had for some time been known to the master, and were unknown to the servant. Ordinary care required that the-timbers which were known to support such a large mass' of loose earth, stone, or slate as fell down on this oar should not be rotten or unsafe. After the accident four or five carloads of the debris were taken out. This mass of loose istuff was known to be held up only by these timbers. The men in going to and from their work and the cars bringing out the coal all had to pass under it. When the timbers were rotten the mass might fall at any time. Ordinary regard for the safety of others did not allow such a known danger to be continued. In the condition of these timbers it was a trap that might fall at any time, and, though the wildness of the mule or the negligence of the driver was the occasion of bringing the car against the post, the real cause of the injury was the rottenness' ■of the timbers, if notwithstanding this the roof would not have fallen but for the unsafeness of the timbers.

The instructions of the court aptly submitted to tihe jury the issue they were to try. Appellants asked no other instructions on the trial, and their learned counsel' substantially concedes the correctness of the instructions of the court, if the case .should have gione to the jury at all. "While the evidence is conflicting as to the extent of appellee’s injuries, the verdict for $500 is not excessive.

Judgment affirmed.  