161 Ky. 424 | Ky. Ct. App. | 1914
Opinion op the Court by
— Reversing.
Iu this action for damages against defendant, Paducah Pole & Timber Company, plaintiff, Jackson Brock-well, recovered a verdict and judgment for $1,500. The defendant appeals.
Defendant conducts a lumber yard on the river bank in the northern section of Paducah, on property leased! for that purpose. Along this property is the right of way of the Illinois Central Railroad Company, which is used to transport engines and cars to the transport boats which are used to ferry them across the Ohio River. The tracks descend gradually from the high ground south of the defendant’s yard to the water’s edge, and rest upon trestle-work and then upon a raised embankment, and finally upon level ground where wagons and other vehicles can be driven across them. The trestle is near the land leased by defendant. Defendant not only used the yard leased by it as a yard, but also stacked lumber on the other side of the tracks. Defendant used the passage under the trestle for the purpose of delivering-lumber from one side to the other. Plaintiff was in the employ of a man named Jones, and was engaged in delivering stakes to defendant. The only roadways in the yard were the spaces between stacks of lumber. The place where wagons usually drove across the tracks was where the tracks were .on level ground. Some four or five days before the accident plaintiff claims that he attempted to cross the tracks at the place where the ground was level, and that, in order to do so, the foreman had to cut the cars. The foreman then told him that if he came through with a
Defendant insists that the verdict is contrary to the law and evidence, and is flagrantly against the evidence.
Plaintiff insists that a recovery was proper for the following reasons: Plaintiff being a servant of Jones, who had a contract with defendant to deliver staves at its yards, was on the premises by implied invitation of defendant. Not only so, but he was directed, in case the roadway across the tracks where the ground was level was blocked, to use the roadway under the trestle, where the injury took place. The roadway under the trestle was not reasonably safe on account of the presence of the stumps and the projecting bolt above. While plaintiff knew of the presence of the stumps and was endeavoring to1 avoid them, he came in contact with the bolt above, of the presence of which he did not know, and which was not so clearly observable as to make it "his duty to see it.
It is admitted that the accident happened in broad daylight. Plaintiff had been under the trestle the same morning with an unloaded wagon. The trestle did not belong to defendant, and was in no way subject to its control. It had no power to change the structure in any
Judgment reversed and cause remanded for new trial consistent with this opiMon.