*95Opinion of the Court by
Chief Justice Hobson—Reversing.
Millard Huddleston was a driver in the service of the Straight Creek Coal Company. He was killed by some slate falling upon him from the roof of one of the entries. His administrator brought this suit against the company to recover for his death. On the first trial of the case, the circuit court instructed’ the jury • peremptorily to find for the defendant. The plaintiff appealed •to this court. It was held on the appeal that under the evidence the case should have gone to the jury. (See Huddleston’s Admr. v. Straight Creek Coal Co., 138 Ky., 506.) The facts of the .case are fully stated in that opinion. Concluding the opinion this, court said:
“The only ground-of defense is that the company having exercised ordinary care to keep the mine in a reasonably safe condition was not liable. If there is a retrial, the jury upon this point should be instructed in substance that if they believe from the evidence that the company exercised ordinary care in making the inspection, and in maintaining the mine, at the time Huddleston ,was killed, in a reasonably safe condition, they should find for the defendant; otherwise, they should find for the plaintiff.”
On the return of’ the case to the circuit court it was tried again. The trial resulted in a verdict and judgment in favor of the plaintiff for $7,500. The defendant appeals.
Among other things the court instructed the jury that if there was gross negligence upon the part of the defendant they might in their discretion find for the plaintiff in addition to compensatory damages such sum in punitive damages as they deemed right and proper under the evidence. While there was sufficient evidence of negligence to take the case to the jury, there was no evidence authorizing punitive damages.
The undisputed evidence showed that when complaint •was made as to the safety of the roof of this entry, the ■defendant had it inspected and the loose slate taken down. This was done the evening before Huddleston was killed, he assisting in the work of getting the slate down under the orders of his superior who directed what was to be done. The next morning at 7 o’clock, the fall of Mate .occurred which resulted in Huddleston’s death. There was no evidence showing such a want of care as *96would warrant punitive damages' under .any definitióii of gross neglect. To allow a recovery here of punitive damages would be to authorize the submission of punitive damages- to the jury in - every case of death where there was evidence tending to show negligence on the part of the defendant. This is not the meaning of the statute. Punitive damages may be allowed under it “where the act is willful or the negligence is gross. (Kentucky Statutes, section 6.) But the latter part of the clause is to be read in connection with the first and punitive damages can only be allowed for negligence where there is evidence tending to show recklessness or indifference to the safety of others. On the former appeal we held the case should go to the jury, but there was no intimation that punitive damages could be recovered. On the contrary it was distinctly held that the only question for the jury was whether ordinary care was exercised.
The opinion delivered on the former appeal is the law of the case. ■ In lieu of the 4th instruction given by the court on the trial, the court on another trial will tell- the jury that it was the duty of the defendant company to exercise ordinary care in making the inspection and in maintaining the mine at the time Huddleston was killed, in a reasonably safe condition for Huddleston’s use, and if the jury believed from the evidence that the defendant company by its agents or servants charged with that duty failed to exercise such care and as the natural result thereof Huddleston was killed by the falling of the slate from the roof the law is for the plaintiff and the jury will so find. Ordinary care is such care as an ordinarily prudent person would ordinarily use under like circumstances. Negligence is the failure to use such care.
. Under the evidence Huddleston was not charged with the duty of making the roof safe. His superiors were charged with this duty. The rule that a servant whose duty it is to make the place safe, can not recover for his injury, has no application to the facts of this case.
In the statement endorsed on the transcript, the judgment rendered in the action,.not the order overruling the motion for new trial, is given as the judgment appealed from. This is sufficient as the judgment is the order sought to be reversed, although it did not become final until the motion for a new trial was overruled. (Continental Coal Corporation v. Cole’s Admr., 146 Ky., 821.)
Judgment reversed and cause remanded for a new-trial.