Appeal from Harrison Circuit Court.
OPINION OF THE COURT BY JUDGE CARROLL — Reversing.
The appellee, Adams, alleging that he was injured by the negligence of the appellant company "in furnishing him an unsafe place in which to work and in furnishing him with unsafe appliances with which to work," sought to recover from the appellant company $1,995. Upon a trial before a jury he was awarded $1,500. The judgment for this amount we are asked to reverse chiefly for the reason that the jury should have been peremptorily directed to return a verdict for the tobacco company.
The facts are these: The tobacco company had a warehouse in Cynthiana in which it prized tobacco in hogsheads. After the tobacco had been put in the hogshead, it would be placed on a low four-wheeled truck and hauled to the place in the warehouse where the screws used in prizing were located. On the occasion that appellee was injured he was in front of this truck pulling it by means of an iron rod, and two other colaborers were behind pushing the truck. When appellee, thus engaged, reached a place on the floor at the tobacco press where it was intended to stop, the truck stalled, and in an effort to start it appellee slipped and fell on his hip and side, bruising him quite severely, but not breaking any bones. At the time and place he slipped and fell the floor was wet and somewhat slippery, caused by the rain then falling, which leaked through a defective roof over the press floor. There was also two worn places in the floor made by the wheels of the truck that were one-fourth or one-half inch deep. The accident happened about half past 9 in the morning, and after appellee and his colaborers had been engaged in this work some two hours and a half.
In 1906-7 Adams had helped prize tobacco for the company in this warehouse, and in 1908, when he was injured, had been working there about two months. He was entirely familiar with the premises. There was no defect in the press or trucks, and the only negligence complained of was in failing to repair the worn-out places in the floor, and in failing to repair the roof so that it would not leak. Adams testified concerning the accident as follows: "Q. What were you doing when you got the fall? A. Pulling a hogshead under the press. Q. Who else was at the hogshead at the time you got the fall working with it? A. John Rorer and Arch Sipples. Q. What was Rorer and Sipples doing? A. Pushing on the hogshead and guiding it. Q. State to the jury whether or not there were any worn places in the floor there near the place under which you pulled the hogshead? A. Yes, sir; there were. Q. How many worn out or uneven places were there in the floor? A. Three, I think. There were two I know, and I think there were three. Q. What wore those places in the floor? A. Pulling those trucks backwards and forwards over them; pulling in and backing out. Q. The truck wheels wore the places? A. Yes, sir. Q. And how deep were these worn places below the level of the top of the floor? A. One-fourth inch or a half inch or five-eighths inch. Q. Was it possible to take the truck with the hogshead of tobacco on it under the press, or take it away from there without pulling it through these worn places? A. No, sir. Q. Where were the wheels of the truck in reference to these worn-out places at the time you fell? A. Setting right on the worn places. Q. Was it raining around there at the time you fell? A. Yes, sir; it was. Q. About how long had it been raining before you fell
if you know? A. I think it commenced raining about 7:30. Q. And you fell about what time? A. Nine, or half-past 9. Q. Where were you with reference to where the truck pulls under the press? A. I was standing right where the hogshead ought to set under the press. Q. Was the hogshead moving at the time you fell? A. No, sir. Q. Had you or any one in your presence said anything to any chief servant of the American Tobacco Company before this injury to you about these worn-out places in the floor? A. Yes, sir. Q. Who was it that had said something about it? A. John Rorer. Q. To whom did he talk to about it? A. Mr. Caywood. Q. What was Mr. Caywood's connection with the tobacco company? A. He was the weighmaster, and he was supposed to be the general manager of the warehouse over the men. Q. What did Rorer say to him about these worn places? A. He told him that they ought to be fixed. Q. What did Caywood say about it? A. He said: `The first time we lay off we will have you and Adams fix it.' Q. How long before you got this fall did this conversation occur? A. Twelve or fifteen days or two weeks. Q. What was said about the roof leaking just where the screw went through the roof, if anything? A. He said he would have it fixed. Q. Did Rorer say anything about that? A. Rorer said, `It leaks around here,' and Mr. Caywood said, `We would have that fixed too.' Q. State to the jury whether the place where you fell was wet or dry? A. It was wet. Q. Did you notice before you fell that it was wet? A. No, sir; it was dry when I went to work that morning. Q. About how many hogsheads a day do you and Rorer pull under that screw, and press down, head up, and pull to the scales? A. Well, some days 25, some 30, and some 35. Q. How
long had those holes been wearing into the floor before the time that you fell? A. Well, there were small places there the winter before that; and the more you work over them the larger they get. They keep wearing out."
On cross-examination he was asked: Q. Was it dry when you went there? A. Yes, sir. Q. And it got wet after you went there? A. Yes, sir. Q. Did you see it? A. No, sir; I didn't see where I fell. I saw it further out on the floor. Q. You saw other places wet? A. Yes, sir. Q. Why do you say you slipped, if you didn't see the wet place? A. It was wet, or I wouldn't have slipped. Q. If there was a wet place and you had noticed, you could have seen it, couldn't you? A. Yes, sir; if I had been noticing. Q. The rain came down from where? A. Where the pipe ran out above where the hogshead sets. Q. Where were you standing when you slipped? A. At that place where the hogshead ought to set. Q. You were pulling when you slipped? A. Yes, sir. Q. Were the other men pushing? A. They were supposed to be pushing. Q. You had been walking backwards and forwards over this place, and hadn't seen the wet place? A. Yes, sir. Q. How many times did you pass over that place that morning? A. I don't know how many times I passed over it. Several times I suppose; but I went in backwards, and out at the sides, and, when I stopped, the hogsheads were setting where the wet place is."
John Rorer, who was assisting in pushing the hogsheads, said he was behind the hogshead six or seven feet from Adams, who was in front of it. "Q. When did the truck stop with reference to the time Adams fell — how short a time before he fell? A. Well, I don't know. We were trying to shove it
under there, and his feet slipped and he fell, and it hadn't been stopped but a few seconds. Q. What caused it to stop? A. Some worn places or sunken places in the floor. Q. Did the truck wheels get into these worn places and cause it to stop? A. Yes, sir. Q. What kind of place did Adams fall in — what condition was the place in that Adams fell? A. It was wet. Q. About how large a wet place was it where he fell? A. Five or six feet across, I reckon. Q. What had wet it? A. Rain leaked in around the screw or pipe that went through the roof. Q. Did you make any complaint to Mr. Caywood about it or any other person about the conditions there? A. Yes, sir; I did. Q. About how long was it before Adams got this fall had you complained? A. Well, I don't remember. I think it was along about the 1st of February I complained about the floor, and the roof too. Q. What did Caywood say about it? A. He told us we could fix the floor some time when we wasn't doing anything — when we caught up — but the floor hadn't been fixed or the leaks repaired when Adams fell. Q. You say that you had an opportunity to fix that place, and it wasn't fixed, and you all went back to work, and no further complaint was made? A. Yes, sir. Q. You say that this wet place was five or six feet across? A. Yes, sir. Q. Anybody could look and see it? A. I did. Q. Couldn't anybody see it? A. I did. I wasn't looking for anybody else. Q. It had been leaking for about how long? A. Ever since I had been at work there when it would rain."
Pearl Ginn testified: "Q. What kind of place was it where Adams fell? A. It was wet. Q. What made that place wet? A. It leaked down from above where the screw went through the roof. Q. Did it leak
around there every time when there was a heavy rain? A. Yes, sir. Q. It had been leaking for about how long? A. Ever since I had been at work there when it would rain."
This was all the evidence for the appellee as to the condition existing at the time of the accident. It appears from this evidence that with the exceptions of the fact that the roof leaked, and there were some slight ruts in the floor made by the wheels of the truck, the premises as well as the appliances were safe. So that the question is: Did the fact that the roof leaked and there were some slight depressions in the floor make the place unsafe to such an extent as to authorize a recovery in this case. We think not. The fact that there were worn places in the floor did not cause Adams to fall, unless it can be said that these places made it harder to move the truck, and consequently required greater effort on the part of Adams and his colaborers, and that this extra exertion in some way contributed to his fall. But evidently the worn-out places had little to do with Adams...
