164 Ky. 763 | Ky. Ct. App. | 1915
Opinion op the Court by
Reversing,
The Yellow Poplar Lumber Company appeals from a judgment of the Pike Circuit Court in favor of Irvin Bartley, who sued by next friend to recover damages for injuries sustained by him while in the employment of appellant company.
It appears from the record that on May 22, 1912, the Yellow Poplar Lumber Company was engaged in moving a lot of saw logs which were piled up promiscuously on the head of Craney Island in the Russell Pork of Sandy River. The pile was twenty to thirty feet high; and the water immediately surrounding it was about six feet deep, but became shallower as the river bank was approached.
The log to be extracted having been rolled down or loosened, a set of grabs would be driven into it, and a long chain attached to the grabs. Then the mules would be driven out into the river as far as practicable and hitched to the chain; and by this means the logs were being pulled from the pile, across and on to the bank of the river.
, Irvin Bartley, a boy sixteen years of age, was assist-' 'ing in this work. This was his first work of the kind and he had been employed only about an hour and a half when he was injured.
He testified that he was employed to “work down there and help them boys.” The boys referred to were “driving grabs and rolling some logs off of the pile where they could hitch on them.”
The plaintiff testified that the foreman, Daniels, was on top of the pile of logs; that the driver of the mules was engaged in pulling at a log to which the mules had been hitched, when the log became caught in some manner and the mules were unable to move it. .He said:
It further appears that the driver of the mules started the team up while Bartley was between the logs, and this is what caused the turning of the log to which the mules were hitched. It was also shown that Bartley was inexperienced in work of the character in which he was engaged.
It is said by appellant that plaintiff produced no evidence that the place of work was dangerous. But the conditions existing therein were fully brought out in evidence, and we think were ample justification for a belief upon the part of the jury that the place wherein the servant was directed to go was a place of peril, and that this fact was known, or ought to have been known, by the master.
Appellant further suggests that conceding that the foreman, Daniels, did give the order to loosen the log, still Bartley was not injured in doing that work. It is true that he was not engaged in an actual attempt to loosen the log when he was hurt, but he was engaged in preparations to do so, and he was present in the place where he was injured as the direct result of the com
Bartley admitted on cross-examination that when the .log in question was hitched to and the first pull on it made, Daniels, the foreman, ordered them all to get out of the way. We do not believe that this was such a warning and instructing of a youthful and inexperienced servant as would operate to place him on the same footing as an adult servant, having knowledge of the danger, in respect of the assumption of the risk; but even if such be conceded to be the effect of the command in question, when Bartley later acted in obedience to the order of Daniels to loosen the log, he did not assume the risk of injury, unless the danger was appreciated by him and was such that a person of ordinary prudence would have refused to encounter it. And these are questions for the jury. Ill. Cent. R. R. v. Keeler, 84 S. W., 1167, 27 R., 305; L. & N. v. Adams, 148 Ky., 513, 147 S. W., 384.
Daniels, the foreman, testified that he employed Bartley only to carry the chain back and forth from the river bank to the log pile where it would be again attached to a log, after having been used in pulling the previous log (although he also admitted that it was Bartley’s duty to do such work as he was ordered to do); that before they pulled on the log -in question, he told the boys to keep out of' the way; that Bartley jumped off the log on which he was standing and in near the log to which the mules were attached, without any order or request from him- (Daniels) to loosen the log or to do anything else in connection with it. McCown, the driver, and Wallace, a boy who was assisting in the work, both testified that if Daniels ever directed Bartley to loosen the log, they did not hear it.
Appellant contends that this instruction was erroneous in imposing liability for the ordinary negligence of the foreman; and that the rule applies that for personal injuries not resulting in death, recovery may be had for the negligence of a superior servant only when such negligence is gross. See L. & N. v. Foard, 104 Ky., 456, 47 S. W., 342, 20 R., 646; C. & O. v. Marcum, 136 Ky., 245, 124 S. W., 293; C. & O. v. Laney, 154 Ky., 39, 156 S. W., 875; Ohio Valley C. & M. Co. v. Heine, 159 Ky., 586, 167 S. W., 873.
But this rule does not apply where the servant is injured as the result of the negligence of the foreman in respect of those non-delegable duties, from the due per-. formance of which the master cannot relieve himself. It is the duty of the master to refrain from ordering his servant into a place of danger. This is only another form of expressing the duty to provide a safe place. And this duty cannot be delegated by the master, nor need negligence in respect thereof be gross in order to form the basis of legal liability. Tradewater Coal Co. v. Johnson, 72 S. W. 245, 24 R., 1777.
Appellant offered instruction Y, which suggested the theory of the defense, and the court should have given a correct instruction along the lines indicated, but instead gave instruction Y as offered. It read as follows:
‘ ‘ The court further instructs the jury that if they believe from the evidence that the plaintiff, Bartley, was injured while he was between said logs described in the evidence, attempting to get a cant-hook, they will find for the defendant. ’ ’
This instruction was equivalent to a peremptory instruction to find for defendant, as the evidence conclusively shows without the slightest contradiction that plaintiff was injured while he was between the logs attempting to get the cant-hook.
The instruction was erroneous, and appellant is not seriously insisting that it was correct; but it does insist that the verdict of the jury is squarely in disobedience of the instruction. By appellee, the suggestion is offered that appellant’s contention in this respect is inaccurate for the reason that Bartley testified that he had already grasped the cant-hook when he was injured, and that therefore he was not attempting to get it; but this is a mere evasion of the mandate of the instruction.
The rule is now well settled in this State that where the verdict is contrary to the instructions of the court, a
In the case of Lynch v. Sneed Architectural Iron Works, 132 Ky., 241, 116 S. W., 693, 21 L. R. A. (N. S.), 852, the question was discussed as to whether a verdict which wholly disregards the instructions should be set aside and a new trial granted, and the court said, quoting from Murray v. Heinze, 17 Mont., 353, 43 Pac., 714:
“If the contention of the appellant is to be upheld, what may we not anticipate as the result in the administration of the law in this State ? If the jury may rightfully invade the province of the court, why may not the court invade the province of the jury in determining questions of fact? As counsel for respondent suggest, if the contention of the appellant is correct, then logically there is an appeal in all cases upon questions of law, from the trial court to the jury. And, as counsel for respondent further suggest in their argument, if the jury may determine the law, an attorney arguing a case may say to the jury, ‘The court will charge you that the law is so and so, but I say to you the court is wrong. You, the jury, are the judges of the law, and may determine it for yourselves.’ Would any court permit such an argument to a jury? Certainly not. But, if the jury are the judges of the law, why should a court prohibit such an argument to them?”
See also St. Paul F. & M. I. Co. v. Kendle, 163 Ky., 146, in which the court said: “The case of Lynch v. Sneed Architectural Iron Works, 132 Ky., 241, 116 S. W., 693, is decisive. It contains an exhaustive review of all the authorities, and after a further consideration of the matter we are not disposed to depart from the ruling announced in that case. ’ ’
The judgment is reversed.