148 Ky. 810 | Ky. Ct. App. | 1912
Affirming.
W. H. Neill Company is a private, corporation, engaged in the mill supply business in the city of Louisville. It deals in belts, pulleys, wheels and all character of supplies used in the mill business. It is not a manufacturer, but simply a dealer. Its storeroom is situated on the north side of Main street between Fifth and Sixth, and runs back to an alley. The store is lighted in the rear by a large window. Harry Eumpf was a teamster, in the employ of A. H. Figg, who conducts a teaming and transfer business in the city of Louisville. About July 15, 1910, the said W. H. Neill Company called upon Figg to haul a heavy drill press from its store room and deliver it to the purchaser. This press weighed 1,500 pounds; was about two feet square, and about six feet long. It was standing near the center of the store room near the rear end, near the alley, in an upright position. It became necessary to put the press upon its side, in order that it might be rolled out to the door and loaded. A crane, to which a block and tackle was attached, was used to assist in laying the drill press on its .side. It seems that the employes about the place were not able to handle this press, and additional help was needed. The evidence shows that two outside men were called in and Eumpf also assisted in lowering the press. In some way, while they were attempting to let it down upon its side, it fell, and in its fall, caught and crushed Eumpf’s hand.. He sued the company for damages, alleging that his injury was due to the negligent manner in which the machinery, to-wit, the crane7 used in lowering the press, was operated; and also, tfiat the boss, in .charge of the work of lowering it, caused it to fall by improperly prizing it at the base. The plaintiff proceeded upon the idea that he was employed to assist in this work.
The defendant denied liability; and denied that it had employed the plaintiff. Denied that it was under any duty or obligation to protect him, except to avoid injuring him after discovering his peril; and pleaded that the work of lowering this press on its side was so simple, plain and obvious that anyone of ordinary understanding and common experience in the handling of heavy articles of this character, could not fail to see and
■ The case was submitted to a jury upon the issue joined, with the result that plaintiff recovered a verdict lor $1,200. Judgment having been rendered thereon, 'the defendant appeals, and seeks a reversal primarily upon the ground that the court erred in refusing to peremptorily instruct the jury to find for it, at the conelu-t siori of the evidence for the plaintiff.
The appellant’s whole defense in this case, is rested •upon the theory that appellee was a volunteer, and, as ■such, he assumed the risk and is not entitled to recover anything because of the injury sustained under these •circumstances. Appellee insists, first, that he was not. a volunteer, but that he was acting under the direction ■of the foreman, Frank, who had ample authority to employ such assistance as was necessary to carry on the business in which appellant was then engaged, and that in the exercise of such authority he did employ appellee, ■or at least requested him to assist in the work, and that under ’these circumstances, if appellant failed to furnish him a reasonably safe place in which to work or reasonably safe and suitable appliances with which to work, and injury resulted because of such failure, appellant is liable. Appellant introduced no evidence whatever, but -insists that the evidence of appellee showed that he was a volunteer. Appellee testifies as to his own connection with that work as follows:
“Q. What did Frank say to you about helping, if anything?
“A. You mean after I got hurt?
“Q. No, before you got hurt.
“A. Oh, he just says go back there, you all hold it up a little bit. * ' * *
“Q. Who else did Frank ask to assist in getting the drill out? Who else was right there?
“A. There was Fahey and Kennedy and Muir and Sullivan and me. * * *
“Q. What part of the work did you do, where were you standing?
“A. I was in the back.
“Q. Who placed you there?
“A. Frank.
“Q. Tell the jury what, if anything, Frank told you to do ?
*813 “A. Well, Frank told me — lie says, you go over there by that machine on the corner. When I got over there they were already cranking and hoisting and it got kind of twisted. They had to change the ropes the third time and Frank got under there with a big crowbar and gave it a turn and it came right over on my hand. * * *
“Q. When you got the drill press over, leaning some-, thing like I indicate by this book, what did Frank then do?
“A. He says, wait a minute now. He seen it was going to fall. Then they got around this way and stopped it.
“Q. When they stopped it what did Frank do?
“A. He took the crowbar and turned it around when it fell over.”
Frank himself testified that the accident was caused in this way:
“Q. What work did you do in' connection with it, actual work?
“A. The actual work I did,. I had a crowbar under the edge of the drill press trying to shove the base of the press.
“ Q. So that you would let it come down directly into the aisle and thereby it could be moved on out through the store.
“A. Well, I don’t know, I don’t recollect clearly just what I was doing. The only thing that I do recollect clearly is the fact that I had a crowbar under the end of the press in order to shove the base.
“Q. Had you shoved the base when it fell?
“A. That is what caused it to fall..
“Q. You shoving the base?
“A. Yes, sir.”
Thus, from the evidence of appellee and of Frank, the1 foreman, it is plain that appellee, along with the other men, was directed to go around and help hold up the press, while Frank prized at its base, and while the men were attempting to hold it, and he prizing at its base, it fell, and appellee was injured.
Appellee testified that he was not expecting any pay for this work, that he had theretofore done similar work when articles were being moved there and had received no pay for it, but that it was the custom of the officers of the appellant company to give him tips at times. The question of compensation cannot enter into the case, so
' It is next suggested in brief, that, if Frank did direct appellee to assist in this work, he was without authority to do so. The evidence does not support or justify this statement. He was there, in charge of the men engaged in removing the press. He did not have a sufficient force on hand, and he found-it necessary to cal-1 in or procure additional help. It is conceded that he sent down by some one, perhaps appellee, and procured the services of two additional men, and, with the help of these and appellee, attempted to get out the press. Having been placed there in charge by the company, and being entrusted with the management of shipping this press, appellant will not be heard to say that he was without authority to get such assistance, as the emergencies of the case required. He says that he had no authority to employ help, but admits that such had been the custom, for many years, in the conduct of their business. Upon -consideration of the-whole record, we are satisfied that Frank, who had charge of this work, was clothed with authority to employ such assistance, in emergency cases, as was needed, and that, in the exercise of this authority, he directed appellee to assist in the- work.
The only remaining question is: Was appellant guilty of negligence in attempting to lower this press in the way and manner in which it did? Frank was familiar with the crane, and knew that too much weight, thrown upon one side, would cause it to fall over; for, he says, if you pull from the side, you would be very apt to pull the machine over. Fahey testified, that it had previously fallen over in Frank’s presence. Sullivan testified that he had warned Frank against its use upon this occasion, but that Frank insisted that it was all right. From this evidence, it may be fairly assumed that Frank
The evidence in the case at bar fails to show that appellee was guilty of contributory negligence; but, on the contrary, it shows that he was acting under the immedate direction of the foreman, that he stationed himself as directed by the foreman, and was attempting to prevent the press from falling over. Under such circumstances, it was the duty of the court to submit to the
Judgment affirmed.