Batsel v. Brown

• Citation: 221 S.W.2d 78,310 Ky. 524
• Parties: BATSEL v. BROWN.
• Decision Date: 31 May 1949
• Court: Court of Appeals of Kentucky

221 S.W.2d 78

310 Ky. 524

BATSEL v. BROWN.

Court of Appeals of Kentucky

May 31, 1949

Appeal from Circuit Court, Muhlenberg County; A. J. Bratcher, Judge.

Action by Jess Brown against J. C. Batsel for personal injuries received while operating a jointer machine in defendant's planing mill. Judgment for plaintiff, and defendant appeals.

Reversed.

Meredith, Iler & Logan, Central City, for appellant.

T. E Sparks, Central City, for appellee.

MORRIS Commissioner.

Appellee plaintiff below, sought to recover $5650 on account of personal injuries received while operating a machine in the planing mill of defendant. Of the sum named $125 was for medical and doctor's expenses, and $525 for loss of time. The injury alleged was the loss of the use of three fingers of the left hand. The testimony shows that the tips of the three fingers were cut off, and the physician testified that he amputated, apparently at the upper joints, and closed the tissue over the ends. Brown was never taken to the hospital and from the evidence lost only a few weeks work.

Plaintiff alleged that at the time of the injury he was operating a jointer, engaged in sawing and processing rough lumber; that he was directed by defendant to operate the jointer, 'which had a rapidly revolving set of blades propelled by electric current.' That on September 24, 1946, he was engaged in placing rough lumber on the machine and running it through the blades, and that without fault on his part his hand was caught in the blades, with the result above stated.

He charged that the machine was in a defective condition because 'necessary and proper guards were not placed on the machine, and the blades were revolving in an exposed position; that defendant had knowledge of the defective condition, or could have known so by the exercise of ordinary care, and that he had no knowledge of the condition of the machine until after the injury.

Defendant answered, denying the allegations of the petition, and affirmatively pleading that the alleged injury was solely the result of defendant's negligence. There are other pleadings relating to the payment of more than $500 to plaintiff during the time he was disabled, and after he returned to work in the same mill as a measurer or supervisor. The points raised on appeal do not necessitate a reference to such pleadings. It appears from appellant's brief and records parties were not eligible to operate under our Workmen's Compensation Law, KRS 342.001 et seq., therefore defendant was not confined to the defenses under that law.

The cause was submitted to a jury which returned this verdict: 'We the jury find for plaintiff and award damage of $750 and $125 doctor's or hospital bills.' On appeal the argument is that Brown assumed the risk; was negligent in the operation of the machine, and that no negligence was shown on the part of defendant, therefore he was entitled to a favorable peremptory instruction, asked at the close of plaintiff's and all testimony.

Appellee, a carpenter 55 years of age, at the time he was injured was and had been engaged in making frames for doors and windows. The machine is described by appellant as an 'iron table with a roller and three bits on it, and runs very fast, used for a planer but more commonly called a jointer. It only planes on one side at a time, and you push it by hand over those bits; just hold your hand over the lumber and slip it through those bits.' At the time Brown was operating it as a jointer. Describing the manner of his injury he said he was working on a piece of lumber 34 inches long 'with a knot in it; it held it up when it went in front; I pushed it through, and the knives at that end cut three of the fingers off.' The only defect in the machinery, according to appellee, was that some machines like the one he was then using were 'supposed to have pressure rollers on top, and this one did not.'

At the time Brown was injured he said Hershel Jackson was a helper but he did not claim that when the injury occurred any one was at the machine except himself, and Jackson did not testify. Brown testified that prior to his injury appellant in using the same machine had his fingers 'nipped,' and appellant says Brown knew this fact. The testimony shows that Brown had been employed by appellant as a truck...