116 Ky. 461 | Ky. Ct. App. | 1903
Opinion of the court by
Affirming.
The appellee, Albert K. Clark, recovered a judgment in the Kenton circuit court against the appellant, the Covington Sawmill & Manufacturing Company, for the sum of $5,000, as damages for the loss of a leg, caused by the breaking of a saw in appellant’s mill. Appellee was in the employ of appellant, occupying the position of “dog setter,” whose duties consisted in adjusting the “dogs,” which were iron hooks or braces, fastened in the log after it had. been put upon the saw carriage for the purpose of holding it firmly in position as the carriage conveyed it to the saw. There is little or no, contrariety in the evidence as to how the accident occurred. At the time of the injury a log had been placed upon the carriage, “the dogs” had been set by appellee, and while it was in process of being run through the mill the band saw struck a piece of iron, which was concealed in the log, with such force as to break the saw, which, being rapidly whirled around by the moving machinery, struck appellee, who was standing hear by, upon the leg, completely severing that member. It seems that the logs which were being sawed by appellee had been rafted down the Big Sandy and Ohio rivers. Logs in raft are held together by means of ropes and chains fastened to iron spikes or staples driven into them. When
The peremptory instruction given by the trial judge was evidently based upon the theory that the “iron hunter” and the “dog setter”' were fellow servants. ' Upon a reconsideration, of' this proposition, however, he seems to have changed his opinion, and consequently awarded appellee a new trial. The “iron hunter,” or inspector, was not a fellow servant with appellee in the sense that precludes the latter recov
Appellant further claims that the petition is defective,, and will not support the verdict. The petition, after setting out in detail the facts of appellee’s employment and duties, says that: “While in the discharge of his duty on or about the 31st of May, 1900, the defendant, with gross negligence, caused said saw either to run too rapidly in said l'og or timber, or because of some iron being in said log or timber, or because of some defect in said saw — one of.'
Instruction No. 1, which is the only one complained of, is as follows: “If the jury believe from all the evidence that the log upon the carriage at the time of the injury to plaintiff, and mentioned in the proof, was, immediately before it was placed upon said carriage, inspected or examined by an employe of defendant company, known as an ‘inspector’ or ‘iron hunter,’ and if the jury believe that in making said inspection or examination the inspector or1 ‘iron hunter’ failed to exercise such care as is ordinarily exercised by ordinarily careful and prudent persons under the same or similar circumstances, and in> the same or similar business, and that the injury to plaintiff resulted solelj from said failure of said inspector or ‘iron hunter,’ and that the plaintiff, at the time and place of the said injury, and in the discharge of his duties, exercised such care as is ordinarily exercised by ordinarily careful and prudent .persons under the same or similar circumstances, and in the-same or similar business, then the jury should find a ver diet for the plaintiff; otherwise the jury should find a verdict for the defendant.” This is in harmony with the authorities we have cited, and seems to us to fully state the law governing this case. It does not make the employer insure the safety of the employe, but only holds it to the exercise of ordinary diligence in supplying reasonably safe material for the use of the latter, which, as said before is consonant with both reason and justice.
The judgment is affirmed.
Petition for rehearing by appellant overruled.