Moseley’s Administrator v. Black Diamond Coal & Mining Co.
Appeal from Muhlenberg Circuit Court filed April 16, 1908
Opinion of the court by Judge Carroll, reversing.

James Moseley was employed as night fireman and engineer by the Black Diamond Coal & Mining Company. The engine room was situated some sixty feet from the mouth of a shaft sunk from the top of the ground to the coal stratum, about one hundred feet below the surface.

The opening of this shaft on the surface of the ground was sixteen by sixteen feet. It was divided into two compartments, in each of which was a cage or elevator used for hoisting and lowering the employees and material from and into the mines. When a person in the bottom of the shaft desired the elevator to be lowered or hoisted, he could notify the engineer by blowing a whistle which could be heard by the engineer.

Moseley was not the regular engineer or fireman, and was only temporarily in charge of the engine on the night he met his death. On that night, a party of young people had gone down into the mine, in company with Tilden Bridges, who was one of the bosses.

After the party went down into the shaft, the regular engineer went off duty, leaving Moseley alone in charge of the engine. A short time after this, Bridges, who was at the bottom of the shaft, blew the whistle to notify the engineer to hoist the elevator, and at this moment, or immediately afterwards, Moseley fell into the shaft from the top, landing in the bottom, fatally injured. He never recovered consciousness.

Postcard showing Coil Coal Company Mine, Madisonville, KY. Early 20th century, no date. The engine room, or ‘engine,’ is far right. The vertical shaft elevator structure leading down to the mine is on the left.

In this action by his personal representative to recover damages for his death, the trial judge, at the conclusion of the evidence for the appellant [Moseley’s representative], directed the jury to return a verdict for the appellee [Black Diamond.] The correctness of this ruling depends upon the question whether or not there was any evidence to show that Moseley’s death was caused by the negligence or carelessness of the company.

The opening in the shaft was enclosed by a fence, and it is not probable or reasonable that the deceased, who was in his right mind and a sensible man, would have climbed a fence and deliberately precipitated himself into a hole one hundred feet deep. There is no suspicion in the record that Moseley desired to commit suicide, or that he was laboring under any mental disease; and the only reasonable explanation of the manner in which he came to his death is that he walked through the open gate and fell into the open shaft.

Section 2731 of the Kentucky Statutes provides in part: “And at every mine operated by a shaft there shall be provided an approved safety catch, and a sufficient cover overhead on all cages used for lowering and hoisting persons.”

[Black Diamond] partially complied with this statute by enclosing the opening or mouth of the shaft with a fence, provided with gates, through which persons desiring to go in or come out of the shaft might enter, but there was evidence tending to show that the gates were constantly left open, and could not be closed on account of coal and other material that had accumulated and was allowed to remain about the gates. To provide a gate and then permit it to be and remain in such a condition, for any cause, that it can not be closed, is the same as if no gate had been provided.

The argument is made in behalf of the company that, although it may have been negligent in this respect does not render it liable in damages for the death of Moseley, because his duties as engineer and fireman did not require him to leave the engine room, or go to the shaft.

It is said that, in going to the shaft, he was not in the performance of any duty owing to the company, or acting within the scope of his employment. That if he had remained at the place where his duties required him to be, he would not have fallen into the shaft or have been injured.

Moseley’s duties as engineer and fireman placed him in charge of all the machinery connected with the lowering and hoisting of the elevators by the engine. It was as much a part of his duties to see that the pulleys and cables attached to the elevators were in working order and good condition, as it was to see that the machinery directly attached to the engine was in proper condition.

It can not be said that his duties were confined exclusively to the engine house, or that he had no right to go about the shaft where the elevators operated by the engine were located. He was not a trespasser, but was rightfully on the premises.

Nor, in view of the darkness of the night and the failure to have the premises lighted, can it be said that the shaft into which Moseley fell was so obviously dangerous, or the hazard in going about it so apparent, that a person of ordinary prudence would not incur risk.

We are of the opinion that there was evidence sufficient to authorize a submission of the case to a jury, and the judgment is reversed, with directions to grant a new trial.

Source: The Kentucky Law Reporter, by Kentucky Court of Appeals, Vol 33 No 8, pp. 110-13, Published by G. A. Lewis, 1908

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