144 Ky. 19 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
The Haldeman Warehouse Company erected a warehouse on Green street between Third and Fourth streets in Louisville. It let the contract for the construction of the house to the National Concrete Construction Company, and it sublet the brick work to Jacob Bornstein.
The ruling of ¡the court was based' upon the ground that the proof did not warrant a recovery under the allegations of the petition. The cause of action was stated in the petition in these words:
“He states that the defendants, Jacob Bornstein and the National Concrete Construction Company, were building and constructing a building on Green street between Third and Fourth streets known and called the Haldeman new public warehouse, and that this plaintiff was engaged at labor as a day laborer in carrying a hod in and about the work of constructing said building, and while so engaged at said labor he was by the gross negligence and carelessness of the defendants, and each of*21 them, thrown and precipitated from a ladder down an elevator shaft whereby he was seriously and permanently injured upon his body and arms and seriously and permanently injured internally, and seriously and permanently injured in his hand, from all of which injuries he suffered great physical and mental pain and anguish and will so continue to suffer for the remainder of Iris life, and that his ability to labor and earn money was and is permanently impaired. ’ ’
It will be observed that it is alleged in the petition that plaintiff was engaged as a day laborer in the work of constructing the building, and while so engaged at labor he was by the gross negligence of the defendants thrown from a ladder down an elevator shaft. The proof, however, failed entirely to show that he was engaged at labor in the work of constructing the building. Bornstein’s man had simply telephoned to the union that they needed two more men. ITe had not employed or attempted to employ Dickerson. When Dickerson came he told him to go to the foreman, and while on his way to the foreman, he was hurt. He had not been employed when he was hurt, but was at the building seeking employment. The relation of master and servant did not exist. It is true he was at the building by invitation and was attempting to go up on the ladder by the direction of the man who had telephoned for him to come. But this fact did not show any right to recover under the allegations of the petition.
When the motion for a peremptory instruction was sustained on the ground above stated, Dickerson tendered an amended petition, but the court refused to allow it filed. He insists that this was error and th.a t the court should have allowed the petition amended to conform to the proof. But the amendment was not sufficient to warrant a recovery, and not being sufficient the court did not err in refusing to allow it filed. While it is alleged in the amended petition in substance that Dickerson had gone to the building in search of work, and was directed to go to one of the upper floors by means of the ladder, and it is not alleged that the defendants or their servants knew of the danger or by ordinary care should have known it, or that they failed to warn him of it, or that he was ignorant of the danger. The gist of the cause of action as shown' by the evidence is
Judgment affirmed.