Ashland Iron & Min. Co. v. McDaniel's Dependents

CourtCourt of Appeals of Kentucky
Writing for the CourtMcCANDLESS, J.
Citation258 S.W. 943,202 Ky. 19
PartiesASHLAND IRON & MINING CO. v. MCDANIEL'S DEPENDENTS.
Decision Date12 February 1924

258 S.W. 943

202 Ky. 19

ASHLAND IRON & MINING CO.
v.
MCDANIEL'S DEPENDENTS.

Court of Appeals of Kentucky.

February 12, 1924


Appeal from Circuit Court, Boyd County.

Action by A. C. McDaniel's dependents against the Ashland Iron & Mining Company. Judgment for plaintiffs, and defendant appeals. Affirmed. [258 S.W. 944]

Robert T. Caldwell and H. Van Antwerp, Jr., both of Ashland, for appellant.

James B. Adamson, of Ashland, W. D. O'Neal, of Catlettsburg, and Dysard & Miller, of Ashland, for appellees.

McCANDLESS, J.

A. C. McDaniel, a youth 18 years of age, was one of a party of four known as the "gin gang," engaged in moving dolomite barrels from a point on the upper floor of appellant's mill to a point on the ground floor. A traveling crane operated by an employé sitting in a cage would be run to a point over the barrels, and the "gang" would inclose the barrel in a rope sling and attach this to the crane hooks, whereupon the craneman would elevate the load and run the crane to the east end of the building, over a rectangular opening in the floor known as the "pit," which was inclosed by a railing called the "cage," and would then lower the barrel through this pit 27 feet to the ground below. The "gang" would walk down a stairway provided for the purpose and release the barrel and roll it to its place, and then return up the stairway for another; the rope being left attached to the crane, which was also elevated and returned.

There were notices posted in the craneman's cage and at some other places in the building forbidding workmen hanging on the crane ropes. McDaniel had been engaged at the work for five or six months, and it seems occasionally violated this rule, and had been corrected for it a month or so previous to the day of the injury.

On that day, after delivering one of the barrels on the ground floor, instead of walking back up the stairway he held to the rope and was elevated to the floor above in safety. On the ensuing trip each of the "gang" took hold of the rope, but as the crane started to ascend all but McDaniel let loose, and he was elevated as before, the other three using the stairway.

It appears that the craneman could not see him until he reached almost to the railing around the cage. At that time there was some excitement among the others who shouted to let him down. McDaniel himself made an outcry, but it was rather in a bantering sort of way. The noise of the mill prevented the craneman from hearing them, and he undertook to elevate the crane sufficiently for McDaniel to pass over the rails, but the rope was so long that he was unable to do this, and in the attempt the blocks of the crane were brought together, and either broke the electric wire by which they were attached or formed a short circuit by which it was burned, causing both McDaniel and the blocks to fall into the pit; the blocks falling on him and fracturing his leg. An operation was performed, but he died shortly thereafter.

A claim was filed by his dependents before the Workmen's Compensation Board, seeking compensation therefor. This was resisted by the company on the theory that the injury was the result of a "sportive" act, or was due to the willful misconduct of decedent, and did not arise out of or in the course of his employment.

At the hearing the above facts were shown, and there was evidence that as he lay in the pit McDaniel was asked how it occurred and answered, "Playing-- hanging on the end of the rope."

In its opinion the Board said:

"* * * We think the means and manner by which decedent tried to ascend from the ground to the upper floor did not place his act of ascending outside the course of his employment and we think that it may be fairly said that deceased acted in the belief that he could ascend by the rope as he had done on the previous trip. It was his duty to go back to the upper floor for the purpose of loading more barrels of dolomite to the crane, and, while a person of greater experience and more mature age would have used the stairway, we cannot say that decedent was guilty of willful misconduct, although his act in so doing constituted negligence on his part. It is apparent the deceased failed to obey a lawful and reasonable rule of his employer provided for his own safety, and that the accident resulting in his own death was caused by the intentional failure of the decedent to obey a lawful and reasonable rule of the company in violation of section 29 of the act which justified the 15 per cent. penalty. * * * Under the law the burden of proof was on the defendant to show that decedent's death was caused by willful misconduct, and under all the circumstances and facts we cannot sustain this defense."

It also found as a fact that--

"(1) * * *

(2) He (McDaniel) was working with the dolomite gang, and after delivering a barrel of dolomite from the upper floor to the ground below, he took hold of the rope attached to the crane for the purpose of ascending to the upper floor. The upper and lower crane blocks came together, breaking the cable which let the deceased fall to the ground below, resulting in his death."

...

To continue reading

Request your trial
4 practice notes
  • Northern States Contracting Co. v. Swope
    • United States
    • Court of Appeals of Kentucky
    • December 17, 1937
    ...Phil Hollenbach Company v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524; Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19, 258 S.W. 943; Moore v. Louisville Hydro-Electric Company, 226 Ky. 20, 10 S.W.2d 466. Not unlike are the rulings pertaining to the necessity of gri......
  • Swofford v. International Mercantile Marine Co., No. 7535.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 1940
    ...v. Lowe, D.C., E.D.N.Y., 10 F.Supp. 288; Thaxter v. Finn, 178 Cal. 270, 173 P. 163; Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19, 258 S.W. 943; Taylor v. Robert Ramsay Co., 139 Md. 113, 114 A. 18 Cf. Central Stock Yards Co. v. Louisville & N. R. Co., C.C., 112 F. 823. 19 4......
  • Maynard v. Workmen's Compensation Board
    • United States
    • Court of Appeals of Kentucky
    • October 23, 1925
    ...S.W. 674, L. R. A. 1916A, 402; Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648, Ann. Cas. 1918B, 604; Ashland Iron & Mining Co. v. McDaniel, 202 Ky. 19, 258 S.W. 943; Junior Oil Company v. Byrd, 204 Ky. 375, 264 S.W. 846). Then, again, the control sought here is not general, but special, sinc......
  • Consolidation Coal Co.'s Receivers v. Patrick
    • United States
    • Court of Appeals of Kentucky
    • June 1, 1934
    ...occurring in the course of his employment, and caused by traumatic accidental injury." Ashland Iron & Mining Co. v. McDaniel, 202 Ky. 22, 258 S.W. 943, The language of the statute clearly confers power upon the board, when making a whole board review of a previous award, to end, diminish, o......
4 cases
  • Northern States Contracting Co. v. Swope
    • United States
    • Court of Appeals of Kentucky
    • December 17, 1937
    ...Phil Hollenbach Company v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524; Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19, 258 S.W. 943; Moore v. Louisville Hydro-Electric Company, 226 Ky. 20, 10 S.W.2d 466. Not unlike are the rulings pertaining to the necessity of gri......
  • Swofford v. International Mercantile Marine Co., No. 7535.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 1940
    ...v. Lowe, D.C., E.D.N.Y., 10 F.Supp. 288; Thaxter v. Finn, 178 Cal. 270, 173 P. 163; Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19, 258 S.W. 943; Taylor v. Robert Ramsay Co., 139 Md. 113, 114 A. 18 Cf. Central Stock Yards Co. v. Louisville & N. R. Co., C.C., 112 F. 823. 19 4......
  • Maynard v. Workmen's Compensation Board
    • United States
    • Court of Appeals of Kentucky
    • October 23, 1925
    ...S.W. 674, L. R. A. 1916A, 402; Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648, Ann. Cas. 1918B, 604; Ashland Iron & Mining Co. v. McDaniel, 202 Ky. 19, 258 S.W. 943; Junior Oil Company v. Byrd, 204 Ky. 375, 264 S.W. 846). Then, again, the control sought here is not general, but special, sinc......
  • Consolidation Coal Co.'s Receivers v. Patrick
    • United States
    • Court of Appeals of Kentucky
    • June 1, 1934
    ...occurring in the course of his employment, and caused by traumatic accidental injury." Ashland Iron & Mining Co. v. McDaniel, 202 Ky. 22, 258 S.W. 943, The language of the statute clearly confers power upon the board, when making a whole board review of a previous award, to end, diminish, o......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT