141 Ky. 5 | Ky. Ct. App. | 1910
Affirming.
Luther Ford was in the employment of the Yellow Poplar Lumber Company working in' a gang of men under a boss named G-eorge Fraley, drilling holes. When a hole got down to a certain depth it was customary to put in a piece of dynamite and fire it off to facilitate the boring. One evening Fraley with another man put dynamite in a number of holes, and undertook to fire off the dynamite, but the dynamite in one hole did not go off, Fraley’s attention was called to this by the man who was working with him, but he took no pains to learn whether the dynamite had gone off or not. The man who told Fraley that the dynamite had not gone off knew it because of the condition in which the wire was left, and the proof is to the effect that by slight care a man can always learn if the dynamite has gone off. On the next day Fraley put Luther Ford, and some other men drilling in the hole where the dynamite had not been discharged, and when the drill came in contact with the dynamite, there was an explosion which blew the drill out of the hole and through Ford’s left hand. Some rocks were blown from the ground below into his hand, and he received a painful injury about tfye thumb, which caused it to be stiff in the first two joints, and his other hand was powder burnt. He brought this suit against the company to recover for his injuries, and a judgment having been entered in his favor for $1,400, the defendant appeals.
The first question made on the appeal is that the court. should have sustained the defendant’s motion for a continuance when the plaintiff filed an amended petition on the trial. The only allegation in the amended petition is that the plaintiff’s injury was permanent. It is insisted that the defendant was not apprised of this claim, and was not ready to try upon it. But in the original petition there was the averment that the injury “caused plaintiff much physical and mental pain and suffering, and as plaintiff believes has permanently injured and disabled the use of plaintiff’s left hand.” While the allegation that the plaintiff believed the fact to exist was not sufficient, it was made good by the answer in which the defendant denied that the injury “has permanently injured or disabled the use of the plaintiff’s left hand.” The amended petition added nothing to the issue which had thus been joined between the parties, and there was no cause shown for a continuance.
The sum of facts shown by the plaintiff is this:-The boss had put the dynamite in the hole, and knew or should have known that it had not exploded. On the next day with this knowledge he put the men to drilling in the hole, they having no information that he had put the dynamite in it the day before. By reason of his negligence in putting them to work at this unsafe place, the plaintiff was injured. A:s we understand the common-law rule, the duty to exercise reasonable care to furnish the servant a reasonably safe place to work is imposed on the master and is not assignable. The boss here in putting the men to work at this hole, neglected a duty which the law imposed, and for this negligence the master is answerable. (4 Thompson on Negligence, section 3874.) Fraley was not the fellow servant of Ford, and the master is none the less liable for Fraley’s putting Ford to work at this hole, because Fraley had himself put the dynamite in the hole the day before.
Lastly, it is insisted that the recover}1" is excessive. The proof Is uncontradicted that the thumb is stiff and shrunken, and that the power to grasp anything with that
Judgment affirmed.