166 Ky. 512 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
In this action for damages by plaintiff, John Thomas, against the National Concrete Construction Company, the trial court, at the conclusion of plaintiff’s evidence,directed a verdict in favor of defendant. Plaintiff appeals.
The facts are as follows: On April 4th, 1911, the defendant was engaged in doing certain concrete work on a building at Fourth and Walnut streets in Louisville. Prior to the accident plaintiff had been employed by defendant as a laborer and was engaged in wheeling sand and gravel. On the day of the accident, defendant’s foreman placed him at work filling buckets with concrete, which were being hoisted to the third floor of the building. For this purpose two buckets were used, each attached to the end of a rope, and as one filled with concrete was being hoisted the empty bucket at the other end of the rope would be lowered to be refilled. As one of the 'buckets was being hoisted, the bail or handle broke and the bucket fell on plaintiff’s head and injured him. The buckets which were being used were “brand new” galvanized iron buckets, which had been purchased the day
In bis petition plaintiff charges that the bucket and bail thereon bad become old and worn and out of repair and in a dangerous and defective condition, and that this condition was known to the defendant, or could have been known by the exercise of ordinary care. He further alleges that defendant assured plaintiff that the buckets and bails were in safe condition and that plaintiff relied on such assurance, and that the danger attending bis employment was not obvious.
i We are not disposed to the view that a recovery cannot be bad because the bucket which injured the plaintiff was a simple tool. It might be so regarded bad it been used in the ordinary and usual way, that is, if the plaintiff bad been engaged in carrying the bucket at the time. As a matter of fact, however, the bucket was being used as a part of the hoisting apparatus, which was being operated by another employee. In view of these circumstances, we conclude that the simple tool doctrine has no application.
It remains to consider, however, whether there is any evidence of negligence on the part of the defendant. Though plaintiff alleges that the bucket was worn and defective, there is not only an absolute failure of proof on this point, but the evidence shows that the buckets were “brand new” buckets. Nor is there any evidence that the buckets were not of sufficient strength for the purpose for which they were being used, the proof showing that they were the kind ordinarily used for hoisting purposes. Indeed, tbe only evidence as to the cause of the accident
Judgment affirmed.