Baringer v. Zachery
| Decision Date | 19 December 1924 |
| Citation | 267 S.W. 182,206 Ky. 229 |
| Parties | BARINGER v. ZACHERY. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.
Action by William N. Zachery against Arthur Baringer. Judgment for plaintiff, and defendant appeals. Reversed.
J. S Luscher, of Louisville, for appellant.
Geo. C Burton, of Louisville, for appellee.
Appellee Zachery was awarded a verdict for $225 in damages for personal injury, on which the judgment appealed from was entered. He was a laborer gathering iron and other junk from a dump in the city of Louisville, but had no connection with appellant, Arthur Baringer, who was engaged, through servants, in hauling waste to the dump. One of appellant's teams, in charge of a colored man, named Owens, brought a load onto the dump and stalled; that is, the wagon stuck, and the teams could not move it or would not do so. After making efforts, the driver of the team, a servant in the employ of appellant, Baringer, called appellee Zachery to give him a lift at the wheel of the wagon, and, according to the testimony of Zachery, he consented to do so in order to help the driver out in an emergency. He took hold of the wheel in an effort to help back the wagon, while the driver was on the wagon holding the reins and controlling the team. While appellee was lifting at the wheel, trying to get the wagon out, the driver pulled the team around so that one of the animals stepped on the ankle of appellee, Zachery, and broke a bone, causing a very plainful and severe injury, for which this suit was brought to recover damages.
Appellant Baringer, defended, upon the ground that Zachery was not in his employ, but a mere volunteer, to whom he was not liable in any event for an injury received while helping to loosen the wagon. He also denied that there was an emergency calling for the assistance of Zachery, and says that his driver did not request Zachery to help move the wagon. Upon these facts he insists that a verdict should have been directed in his favor.
It is well settled that a stranger who is injured while rendering assistance to a servant of the master in an emergency is not upon the plane of a mere volunteer or intermeddler, and therefore barred of recovery, but is an emergency assistant whom the servant had a right to engage, and, when his assistance is enlisted in an emergency, is owed the same duty by the master and entitled to the same protection from the master as any other servant engaged in like employment, but is not a fellow servant with those regularly engaged. We so held in the case of Central Kentucky Traction Co. v. Miller, 147 Ky. 110, 143 S.W. 750, 40 L.R.A. (N. S.) 1184, saying that:
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Howland v. Tri-State Theatres Corporation
...party was injured by the negligence of one employed by a servant to assist in the master's work. Of the cases relied on, Baringer v. Zachary, 206 Ky. 229, 267 S.W. 182, and Ohm v. Miller, 31 Ohio App. 446, 167 N.E. 482, involved a real emergency, justifying the servant's employment of anoth......
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Powell v. Commercial Standard Ins. Co.
...unexpected one; such as in a case where the servant cannot perform his task without immediate assistance. Example is to be found in the Baringer case, where a wagon was mired and the teamster unable to move it; an unforeseen contingency which gave rise to a calling for temporary help. There......
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... ... 810, 147 ... S.W. 910, L.R.A.1917C, 1199; Kentucky Lumber Company v ... Nicholson, 157 Ky. 812, 164 S.W. 84, 51 L.R.A., N.S., ... 1213; Baringer v. Zachery, 206 Ky. 229, 267 S.W ... 182; 18 R.C.L. 580, and annotations in 76 A.L.R. beginning on ... page 963. On page 965 of the latter volume, ... ...
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Beale v. Clayborn
...master and servant might be applied in case of injury, and yet such rules might not be applied under other circumstances. In Barringer v. Zachary, 267 S.W. 182, a driver of a working for his master had his wagon stuck in the mud and in getting assistance to get it out, requested the plainti......