129 Ky. 799 | Ky. Ct. App. | 1908
Opinion op the Court by
Affirming.
Appellee, Jesse Thomas, was employed by the appellant company as- a laborer in its sawmill at Beattyville, Ky. His duties were to oil and look after the machinery, which included not only the machinery used in the mill building proper, but also the chains and other appliances which were used in drawing the logs from the water up into the mill. On the 9th of August, 1905, when just outside of the door of the mill, where he had gone to look after certain machinery, appellee was struck on the head by a stave thrown from a second-story window of the mill. His skull was fractured, and a portion of it had to be .removed. Paralysis of the legs resulted from the injury, and he was shown to be, not only seriously, but permanently, injured. The stave which struck appellee upon the head was thrown from the second-story window by an employe named Coomer, whose special duty was two-fold: To “bug” the logs, and to throw the staves from a second-story window out upon a pile in the millyard. The particular stave which struck appellee was not thrown upon the stave pile, but out of a front window onto a drive or roadway, which was used-for the teams and mill hands in
The first ground relied upon for reversal is that the court erred in failing to instruct the jury on the law of fellow servants, and risks assumed by the injured employe. No instruction was asked upon either of these subjects, and hence, under the well-settled rule, the failure of the court to so instruct is not a reversible error. Galbraith v. Starks, 117 Ky. 915, 25 Ky. Law Rep. 2092, 79 S. W. 1191, and L. & N. R. R. Co. v. Harrod, 115 Ky. 877, 25 Ky. Law Rep. 250, 75 S. W. 233. Aside from this, however, there is nothing in the record from which it might be fairly inferred that Coomer and appellee were in the same grade of employment, or fellow servants. One of them was engaged upon the lower floor in oiling and caring for •the machinery, while the duties of the other kept him upon the second floor, where he looked after the logs and removed the staves. Their.field of labor was entirely separate and distinct; the one had no opportunity to observe the other in the performance of his duty, or to advise, assist or direct him in the discharge of same. Neither had any opportunity of knowing with what degree of care and skill the other was discharging the duties assigned him. The most that the record shows is that they were working for a common master, but the work of each was independent of the other, and in separate and distinct departments of the mill. They were co-servants, but not fellow servants.
In the case of L., C. & L. R. R. Co. v. Cavens, 9 Bush 559, an employe of the railroad on one train was injured by the negligence of another employe of
Counsel also complains because the court refused to give instructions A and B. These bore upon the question of contributory negligence. There is no evidence upon which to base such an instruction, unless it is to be inferred from the statement that appellee could have observed the condition of the machinery, which was not working all right, by looking through the window at the side. It is true he might have observed the condition of at least a part, if not all, of the chain, which was working improperly; by looking out of the side window. He could likewise observe it as completely, and, perhaps, more satisfactorily, by going in the road or passway, as he did. The latter course was, under normal conditions, neither more hazardous nor more dangerous than the former. In "fact, appellee had on the same day gone outside and observed the working of the machinery, on an occasion before that upon which he was struck. His injury
Appellant objects to the instructions given by the court; to instruction 1 because it is faulty in several particulars, and to instruction 3 because unauthorized, in that there is no plea of “dangerous premises.” This is true. There was no plea that the premises themselves were dangerous; the danger was in the carelessness of Coomer in throwing the stave out of the wrong window, and upon the driveway. It was not improper for the court to say to the jury that appellee might presume that the place where his duty called him was reasonably safe, and this is the substance of the instructions. The place where 'appellee was assigned to work was, perhaps, as safe as any place could be around a sawmill. The injury resulted, not from defective premises or appliances, but from the negligence and carelessness of one of the employes of appellant. The giving of this instruction could not have misled the jury, and appellant was not preju^ diced thereby.
Instruction No. 1 is subject to criticism, but the
Appellant also complains that the word “willful” should not have been used in this instruction, it being urged that the term “willful neglect” is applicable only in cases brought under the statute, where a recovery is had for an injury resulting in death. The contention of appellant in this particular is correct, and, in reversing the cases of L. & N. R. R. Co. v. Long, 94 Ky. 410, 15 Ky. Law Rep. 199, 22 S. W. 747, and L. & N. R. R. Co. v. Foard, 104 Ky. 456, 47 S. W. 342, 20 Ky. Law Rep. 646, the use of the word “willful” in a similar instruction' was condemned. But the case should not be reversed for this reason alone. Very few important cases are tried in which minor errors are not committed by the court in the introduction of testimony and the instructions, but in no case should a judgment be reversed because thereof, unless they should be deemed prejudicial to the substantial rights
Appellee was fearfully and permanently injured, and as the finding and verdict of the jury, in the light of the evidence, appears reasonable and just, we are of opinion that the judgment of the lower court should be affirmed, and it is so ordered.
Petition for rehearing by appellant overruled.