Bowling Green Stone Co. v. Capshaw

• Decision Date: 08 October 1901
• Parties: BOWLING GREEN STONE CO. v. CAPSHAW. [1]
• Court: Kentucky Court of Appeals

64 S.W. 507

BOWLING GREEN STONE CO. v. CAPSHAW. ^[1]

Court of Appeals of Kentucky.

October 8, 1901

Appeal from circuit court, Warren county.

"Not to be officially reported."

Action by D. W. Capshaw against the Bowling Green Stone Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Bodley Baskin & Morancy and Sims & Grider, for appellant.

B. F Proctor and C. P. Chenault, for appellee.

WHITE J.

This action is for damages for injuries to appellee's foot caused by having a truck loaded with stone run upon it. The appellee alleges that the injuries were caused by the gross negligence of the servants of appellant. From the proof these facts are substantially shown: Appellant is a corporation operating a stone quarry, getting out stone, and sawing it into suitable shape, and shipping and selling same upon the market. The stone, after being loaded on trucks, was pushed back into stalls in the mill over tracks similar to railway tracks, to be sawed into the desired sizes. After being sawed, the truck was drawn out of the stall into the mill yard over the track by means of a chain attached to the end of the truck passing through a stationary pulley 18 feet from the stall, and this chain was drawn through the stationary pulley by means of an overhead engine located in a movable car known as the "cab." This car moved east and west upon a track called the "traveler," and the "traveler" moving north and south upon trestled rails. The injury occurred by the truck running over appellee's great toe just after the truck had been pulled from the stall, and upon it starting under a second pull toward the stationary pulley. Appellee was employed as carpenter at the mill, and as such it was his duty to make all necessary repairs in wood and iron, and to all machinery used by appellant. According to appellee's evidence, it is shown that on the morning before the injury the superintendent in charge came to appellee, and complained that the stone cut in stall No. 1 was not sawed straight, and directed him that when the stone was pulled out of that stall to try it with a straightedge, and to repair the saw guides so as to make the saws cut straight. This order or direction by the superintendent is denied by him, and presents one of the material issues made. At about 1 o'clock on the day of the injury appellee came out of the mill door on the south of stall No. 1 with some strips for saw guides and some tools in his hands. The truck loaded with stone that had been sawed was being moved out of stall No. 1 by the engine and chain. The exact time when appellee came out is not clear from the proof; some of the witnesses testifying it was before the first pull was completed, others that it was after the stop. When the truck was still on the track, and while the men were preparing for the second pull, appellee stepped up to the stone, and applied a straightedge to the sawed sides, and in so doing placed his foot on the rail and in front of the wheel of the truck. While in this position, the engine was started, and the truck drawn onto the foot, injuring it. There were no bones broken or removed, but the flesh was torn and mashed, so that under the great toe and the ball of the foot flesh had to be cut off. The answer denies negligence of any servant, and pleads contributory negligence on the part of appellee. Contributory negligence was denied. Trial was had on these issues, which resulted in a verdict and judgment for $2,000, and, after appellant's motion for new trial had been overruled, this appeal is prosecuted. The reasons appellant assigns for a new trial are that the verdict is excessive, is contrary to the evidence, and errors of the court in refusing a peremptory instruction and in giving instructions Nos. 1 to 9 to the jury. Also in refusing "b" and "c"...