A. Bentley & Sons Co. v. Bryant

• Decision Date: 31 May 1912
• Citation: 147 S.W. 402,148 Ky. 634
• Parties: A. BENTLEY & SONS CO. et al. v. BRYANT. d
• Court: Kentucky Court of Appeals

147 S.W. 402

148 Ky. 634

A. BENTLEY & SONS CO. et al. v. BRYANT. d

Court of Appeals of Kentucky.

May 31, 1912

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Arthur L. Bryant against the A. Bentley & Sons Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Sheild & Campbell and Camden R. McAtee, all of Louisville, for appellants.

Popham Trusty & Roose, of Louisville, for appellee.

SETTLE J.

This is an appeal from a judgment for $6,000 damages recovered by appellee in the court below against the appellants A. Bentley & Sons Company and E. T. Seng; Seng being an employé of A Bentley & Sons Company intrusted with the duty of operating their stationary hoisting engine. Appellee was a carpenter in the employ of the appellant A. Bentley & Sons Company, which, as contractor, was erecting what is known as the Snead Building at or near the corner of Market and Ninth streets in the city of Louisville, Ky. The recovery in question was for injuries sustained by the appellee from being scalded while on the premises, alleged to have been caused by the negligence of appellant A. Bentley & Sons Company in failing to provide him with a reasonably safe place to work, and the concurring negligence of its engineer, Seng, in the operation of the stationary engine of which he was in charge. It is averred in the petition that attached to the stationary hoisting engine which the appellant A. Bentley & Sons Company employed in hoisting material used in the construction of the building was an exhaust pipe which it negligently laid and maintained in such a manner as to cause it to rest upon the roof of an adjoining toolhouse with its end projecting therefrom a foot or more over a passway, which made the passway dangerous to its employés in going to and from their work by reason of the exhaust of steam and hot water thrown off at times from the engine.

It is further averred in the petition that as appellee was going through this passway to his work as a carpenter in the fifth story of the building steam and hot water fell from this pipe on him, whereby he was so badly scalded upon his face, chest, shoulder, and arm as to cause him great physical and mental suffering, permanently disable him, and greatly lessen his ability to earn money. It was the custom of the engineer, Seng, not to start the engine or cause the exhaust pipe to emit steam and hot water until after the workmen about the building left the passway, where the water would be thrown, but on the occasion of appellee's receiving his injuries Seng, as claimed by appellee, negligently started the engine and caused the flow of hot water from the exhaust pipe while he and other workmen were in the passway, without notice to them of his purpose to do so, and that such negligence on his part, concurring with that of the appellant A. Bentley & Sons Company in maintaining the pipe so that it projected over the passway, caused appellee's injuries.

The answer of the appellants rested their defense upon the following grounds:

First. That appellee at the time of receiving his injuries was not engaged in the service of the appellant A. Bentley & Sons Company; therefore it was not under any duty to provide him a safe place to work.

Second. That the injuries he sustained were incidental to his employment, and resulted from an assumed risk.

Third. That, if appellee was injured by Seng's negligence, there should have been no recovery, as Seng is a fellow servant.

Fourth. That appellee's injuries were caused by his own negligence.

It appears from the evidence that the building being erected by the appellant A. Bentley & Sons Company, had in the rear of it a large vacant space belonging to the lot, and that upon this vacant space it erected various sheds and shops, which were stored with material and tools for use in the construction of the building. The vacant space also contained a drive or passway which extended from Ninth street to and in the rear of the building, and was used by wagons and employés at work upon the building in going to and returning from same. Where the passway reached the building a runway was provided, one end of which rested upon the ground in the passway, the other end extending to the third floor of the building. This runway was used by the employés in getting upon and coming down from the building. The tool shed on the roof of which the exhaust pipe rested was on the south side of the passway, and south of the tool shed was situated the boiler and engine from which the exhaust pipe led; the tool shed being between the boiler and the passway, and obstructed the view, so that the engineer could not, from the engine, see persons passing in front of the exhaust pipe, nor could those walking through the passway see the engineer or the boiler of the engine. The toolhouse was the place where the carpenters, steel, and concrete workmen kept their tools, and where the workmen usually left their baskets or buckets containing their dinners. Before beginning work in the morning the employés gathered in and about this passway to the toolhouse, and waited for the whistle which required them to go to their respective places of work on the building and premises. At the noon hour the employés came from the building by means of the runway, and ate their dinners in the sheds, on the runway, or other convenient places, and usually remained where their meals were taken until it was time for them to return to work, notice of which was given by a blast of the whistle at 12:25 o'clock. Following this signal they were allowed five minutes to get to their places of work. At the end of the five minutes another blast of the whistle was the signal for them to begin work. The passway referred to was the only suitable one provided for the use of the workmen in going to and from the building, and all who used it were compelled to pass where the exhaust pipe projected from the roof of the toolhouse. It was about eight feet from the ground to the mouth of the exhaust pipe and hot water was emitted from the pipe only after the engine had been standing for a considerable time following its operation. In view of this fact, there was little occasion for the workmen in or upon this building to observe the exhaust pipe; in other words, the exhaust usually occurred after the men had passed the shed, or after they had reached the building, and, as the pipe was so much above the heads of those using the passway, unless it happened to be throwing out water as they approached, there was little probability of its being seen by them. Moreover, there was no placard or other sign to indicate the presence of the pipe or the danger arising therefrom.

On the day appellee received his injuries, the whistle for noon lunch was blown at 12 o'clock as usual, and it was then necessary for the workmen to leave their places on the various floors of the building and obtain and eat their lunches, that they might be ready to return to their work at the end of twenty-five minutes, or, at any rate, to be ready to begin work at the end of thirty minutes. When the 12 o'clock whistle sounded, appellee left his place of work on the fifth floor of the building and descended to the ground by means of the runway leading from the third floor to the passway, and he and his brother sat upon the runway and ate their lunch, which had been brought them by appellee's son. After completing their lunch, and just before the 12:25 minute whistle blew, appellee walked through the passway toward Ninth street with his son, and stopped at a place between the toolhouse and Ninth street entrance where a crowd of workmen were standing and talking. While there the five-minute whistle blew, and he then turned and walked through the passway to...