Bush v. Grant

• Decision Date: 19 March 1901
• Citation: 61 S.W. 363
• Parties: BUSH et al. v. GRANT. [1]
• Court: Kentucky Court of Appeals

61 S.W. 363

BUSH et al. v. GRANT. ^[1]

Court of Appeals of Kentucky.

March 19, 1901

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by John P. Grant against S. S. Bush and C. A. Parker to recover damages for personal injuries. Judgment for plaintiff, and defendants appeal. Reversed.

Clarence Dallam, for appellants.

Suter &amp Solinger, for appellee.

O'REAR J.

S. S Bush and C. A. Parker were the owners of an office building in Louisville, and contracted with the Whitney Artificial Stone Company to make a concrete floor in the basement of it. The stone company employed appellee and others in the course of the work, appellants having no supervision or charge of the workmen or of their conduct. There was no provision in the contract for the use of an ash lift which appellants had had constructed and were operating in the building, designed and used solely for the purpose of lifting ashes and cinders from the basement to the street. This lift, or elevator, had a platform, some 2 feet 10 inches by 3 feet, hoisted by wire cable one-half to three-fourths of an inch in diameter passing over a drum or spool, and under the platform, so that by operating a winch or windlass by hand the platform, with its contents, were hoisted to the street above. Two tin cans about 16 to 20 inches in diameter by 3 feet high were used to hold the ashes and cinders, and when so filled the weight upon the lift was from 200 to 300 pounds. There was also a stairway, convenient in location, and suitable in structure leading from the basement to the upper floor and street. The stone company's foreman asked appellant's engineer who had charge of the machinery in the basement of the building, how he could get some débris, sand, etc., from the basement. The engineer responded that he could use either the stairway or the ash lift. On December 10, 1898, some days after the conversation above related, the stone company's foreman directed some of its workmen engaged in removing débris left from its work contracted for as above stated to remove same by loading it into the ash cans, and hoist it by the lift, then to be removed from the street. Appellee had been engaged for a short while on that day in filling the cans and operating the lift, and was then ordered to go up to the pavement, and receive the cans as they came up. One load of sand or ashes became caught in the opening in the pavement,--the shute left for the lift,-- and appellee endeavored to loosen it by reaching down for it with his hands. Failing in this, he got onto the lift, which, under his added weight, gave way by the breaking of the cable supporting it, precipitating appellee to the bottom of the basement, resulting in injuries to his ankle, and probably other parts of his person. He sued appellants upon the facts stated, resulting in a verdict and judgment in his behalf. The case comes here for review upon alleged errors noticed below.

The trial judge instructed the jury upon the assumption that appellants were compelled to have had the ash lift in reasonably safe condition for the purpose for which it was constructed and used, and that, if it was not so, and that fact was known to appellant or their employés or servants then they were liable to appellee in damages, provided he was not also negligent in the act resulting in his injury. If such be the law, then we think the case was fairly submitted to the jury, unless appellee's own negligence is shown to have caused or contributed to the injury. It is conceded that the stone company was an independent contractor, having the right to employ its own help, and adopt exclusively its own methods in doing the work contracted for. Neither it nor its servants were under the control of the lot owners. We cannot see that there was any privity or relation between the owners and the employés of the contractor. These employés were not the owners' servants, did not look to them for either compensation, direction, or protection. Nor did the owners owe them any duty, save to refrain from purposely or knowingly injuring them. The rule that the master is liable to the injured servant (when he is liable) because of defective appliances furnished him is based upon the idea that the master owes the duty in conscience to the servant to furnish him reasonably safe...