Kelley v. Barber Asphalt Co.

• Decision Date: 08 October 1892
• Citation: 20 S.W. 271,93 Ky. 363
• Parties: Kelley v. Barber Asphalt Co.
• Court: Kentucky Court of Appeals

20 S.W. 271

93 Ky. 363

Kelley v. Barber Asphalt Co.

Court of Appeals of Kentucky.

October 8, 1892

Appeal from Louisville law and equity court.

"To be officially reported."

Action by J. E. Kelley against the Barber Asphalt Company for personal injuries sustained while in defendant's employ. The court directed a verdict for defendant, and from a judgment thereon plaintiff appeals. Affirmed.

Bennett J.

The appellant was in the employ of the appellee, and while he was drawing up some material from the first to the second story of the building, by the direction of the appellee's foreman, and while he was pending over a revolving shaft or windlass, in order to draw off the buckets containing the material, his shirt was caught fast to the revolving shaft and drew him around it, which caused one of his arms to be broken, and other bones in the body. He instituted this action against the appellee to recover damages for the injury, alleging that it was caused by the negligence of the appellee in having defective machinery, etc. Upon the conclusion of the appellant's evidence, the court gave the jury a peremptory instruction to find for the appellee. From that judgment the appellant has appealed. The appellant at the time of the accident, was in his 17th year of age, was about 5 feet and 11 inches tall, weighed about 140 pounds intelligent, used to working about machinery, and sought work and made contracts of employment on his own account. The shaft or windlass mentioned was about 2 1/2 feet above the second floor, and over the edge of the floor where there was an opening to the lower floor, from which the material was to be drawn in buckets to the second floor. The shaft was smooth, and was revolved by a leather belt, which moved other machinery. In drawing up the buckets the appellant had to bend over the shaft. The buckets, with the material in them weighed about 40 pounds. While the appellant was bending over the shaft to draw up the third bucket of material, he having drawn up two buckets of it, his shirt, being loose and looped, got fastened to the shaft, and drew appellant to it and around it, causing the injuries mentioned. The evidence is conclusive that the appellant was employed to perform any and all kind of work that he was capable of performing about the establishment, that he was desired to perform. It also conclusively shows that he was not working with the shaft or windlass, but he was drawing up material with buckets,-a work that any person possessing sufficient strength and ordinary sense could perform; that the shaft or windlass was not a defective or a particularly dangerous piece of machinery; that the appellant, in performing his task,...