Bruton's Adm'r v. Eddington-Griffiths Const. Co.

• Decision Date: 05 May 1909
• Citation: 118 S.W. 1001
• Parties: BRUTON'S ADM'R v. EDDINGTON-GRIFFITHS CONST. CO. et al.
• Court: Kentucky Court of Appeals

118 S.W. 1001

BRUTON'S ADM'R v. EDDINGTON-GRIFFITHS CONST. CO. et al.

Court of Appeals of Kentucky.

May 5, 1909

Appeal from Circuit Court, Laurel County.

"Not to be officially reported."

Death action by James Bruton's administrator against the Eddington-Griffiths Construction Company and another. There was a directed verdict for defendants, and plaintiff appeals. Reversed and remanded for a new trial as to the mentioned defendant, and affirmed as to the other.

W. E Evans and C. C. Williams, for appellant.

J. W Alcorn, for appellees.

HOBSON J.

The Eddington-Griffiths Construction Company entered into a contract with the Louisville & Nashville Railroad Company to make a tunnel for it in Laurel county. James Bruton was a colored laborer in its service, and while at work in the tunnel was killed by a stone which fell from the roof of the tunnel upon him, mashing him so that he died almost immediately. This action was brought by his administrator against both the railroad company and the construction company to recover for his death. At the conclusion of the evidence for the plaintiff, the court instructed the jury peremptorily to find for the defendants. A verdict and judgment having been rendered for the defendants, the plaintiff appeals.

The peremptory instruction as to the railroad company was proper as the deceased was not in its service, and there was nothing in the evidence to make it responsible for his death. As to the construction company, a different question is presented. The relation of master and servant existed between the deceased and it. It was incumbent on it to use ordinary care to furnish the deceased a reasonably safe place to work. The rock which fell was a large piece of slate, and is called by one of the witnesses a "horseback." It was 2 or 3 feet wide, 2 feet broad, and a foot or more thick. It fell about 20 feet from the mouth of the tunnel. The tunnel had been cut for about 50 feet. For about 35 feet it was completed, and for about 15 feet the bench had not been taken out. The deceased was working on the floor of the tunnel cleaning it up. He belonged to what was called the "night shift," and had only been at work a few minutes when the rock fell upon him. The roof of the tunnel so far as it had been completed, was not braced or protected in any way to prevent the stone above from falling down, although preparation had been made for this. The plaintiff proved by J. K. Nickolson that he examined this part of the tunnel on the next day, and that there were crevices in the roof. He could see where the rock had fallen out, and around that were streaks and muddy seams where the...