Berry v. Irwin

• Decision Date: 24 June 1927
• Citation: 295 S.W. 1020,220 Ky. 708
• Parties: BERRY ET AL. v. IRWIN.
• Court: Kentucky Court of Appeals

295 S.W. 1020

220 Ky. 708

BERRY ET AL. v. IRWIN.

Court of Appeals of Kentucky.

June 24, 1927

Appeal from Circuit Court, Hardin County.

Action by S. S. Irwin against Emil Berry and others. Judgment for plaintiff, and defendants appeal. Affirmed.

H. L James, of Elizabethtown, and Charles W. Morris, of Louisville, for appellants.

L. A Faurest, of Elizabethtown, for appellee.

HOBSON C.

Billiter & Wiley were the contractors for the building of the state road from Elizabethtown to Bardstown. They had in their employ Silas S. Irwin as a laborer. They were crushing the rock about 5 miles east of Elizabethtown, and were building the road eastward toward the crusher. They made a contract with Berry & Kelly, by which Berry & Kelly agreed to haul the crushed rock from the crusher to the point on the road where it was to be put down, at so much a ton. Berry & Kelly owned the trucks and employed the drivers; one of these was Tim Givans. It was the custom of the business for the trucks when they reached near the place for dumping the rock, to turn around and back in so that they could go out without disturbing the finished part of the road. Irwin had some days before shown Givans the place where he was to turn around, and it was a part of his business to do this. On Monday morning, when Givans came eastward with his first load, Irwin and another man were at the side of the road just about 30 feet west of where the stone was to be dropped, cleaning out the shoulders of the road. The width of the metal was 14 feet. About this time a roller belonging to Billiter & Wiley came in and stopped opposite Irwin, who was working on the side of the road. The roller took up 7 feet of the road. When Givans reached the turning point he turned around and backed in. The truck was heavily loaded with rock, and he could not see behind him because the rock obstructed his view. It was down hill from where he turned to the point where the rock was to be dropped. The truck coasted down, making very little noise. Irwin was shoveling dirt out, and before he knew it the truck struck him, crushing his leg in several places, and inflicting a painful injury on his right arm. Givans saw the men working when he turned around, and he says that he then blew the whistle; but Irwin heard no whistle, and his testimony that none was blown was confirmed by several other witnesses. Two other men behind Irwin, seeing his danger, hallooed; but he did not get the warning in time to save himself. He brought this suit to recover for his injury against Berry & Kelly and Tim Givans. The jury returned a verdict in his favor for $5,000. The defendants appeal.

It is earnestly insisted that a peremptory instruction should have been given in favor of the defendants. It is said that Givans, in backing down, as he did, was obeying orders of Billiter & Wiley, and that in so doing he was their servant and not the servant of Berry & Kelly. But it was a part of Berry & Kelly's duty under the contract to haul the stone and drop it where it was to be used. Billiter & Wiley had a right to tell them where to drop it and also to give directions as to where the trucks should turn around; for they had to provide these turning places. Givans, in running the truck of Berry & Kelly, delivering the stone pursuant to the contract, was their servant at all times. There was sufficient evidence of negligence on the part of Givans to take the case to the jury. He saw the men at work when he turned around; he saw the roller; he was bound to know that, as the road was only 14 feet wide and the roller took up 7 feet, his truck would take up the other 7 feet. He should have known that when he ran around the roller the men at work on the side of the road would be in danger. He could not see them after he turned. If the evidence of the plaintiffs was true, he turned around and coasted down upon the men without any warning of his approach. As he could not see after he turned, and as the trucks came at irregular intervals, it was incumbent on him to give adequate notice before he backed down on the men in this way, and whether the notice he gave was adequate was a question for the jury.

The rule applied between trainmen and section hands working on the track does not apply here. The section hands work anywhere along the section. The trainmen have no reason to know where they will be. They work under the direction of the section boss. It is his duty to keep advised as to the coming of trains. Here the men putting the rock on the road necessarily worked where the rock was dumped. Givans had reason to expect their presence and in fact saw them there when he turned around. Even trainmen must keep a lookout and give warning when they know or have reason to expect persons to be on the track at that place. C. & O. R. Co. v Berry, 164...