Central Kentucky Gas Co. v. Cantrell

• Decision Date: 11 February 1919
• Citation: 183 Ky. 291,209 S.W. 1
• Parties: CENTRAL KENTUCKY GAS CO. v. CANTRELL.
• Court: Kentucky Court of Appeals

209 S.W. 1

183 Ky. 291

CENTRAL KENTUCKY GAS CO. v. CANTRELL.

Court of Appeals of Kentucky.

February 11, 1919

Rehearing Denied March 4, 1919.

Appeal from Circuit Court, Johnson County.

Action by Elijah Cantrell against the Central Kentucky Gas Company. Judgment for plaintiff, and defendant appeals. Reversed.

J. K Wells, of Paintsville, W. B. White, of Mt. Sterling, and Hazelrigg & Hazelrigg, of Frankfort, for appellant.

Vaughan & Howes, of Paintsville, for appellee.

SAMPSON J.

The Central Kentucky Gas Company was engaged in excavating a deep ditch for the purpose of lowering its pipe line at a certain point in Johnson county,, and appellee, Cantrell, with a number of other men, was aiding on the work. While so engaged Cantrell asserts that he so exerted and strained himself in his side and abdomen as to cause hernia, which has practically destroyed his power to perform labor and earn money. This action was instituted in the Johnson circuit court against the gas company to recover damages for the injury, and a trial resulted in a verdict and judgment for $2,500 in favor of Cantrell, and the gas company appeals.

The tools with which Cantrell worked consisted of a common pick and a longhandled shovel. The ditch was about 3 feet wide at the top, 10 or 12 feet deep, and about 18 inches wide at the bottom. Cantrell commenced to work at the surface, and he and two companions jointly sank the ditch to the depth at which he was working at the time of his injury. He was standing on the bottom of the ditch, using an ordinary longhandled shovel, with which he was throwing the dirt out of the ditch onto the top of the ground. There was no platform or other arrangement in the ditch for relaying the dirt, and this is the chief ground of Cantrell's complaint, because, he says, the plan adopted for the work by the master was not reasonably safe, and not the method usually employed by reasonably prudent persons engaged in similar work. No complaint is made of the tools, or of the working place except as aforesaid, and it would therefore appear that appellee, Cantrell, must base his claim for damages upon the alleged negligence of the company in failing to provide platforms or other relay in the ditch, upon which the dirt might be cast, and again taken up and thrown to the surface.

The gas company insists that the trial court erred to its prejudice in failing to sustain its motion, made both at the conclusion of plaintiff's evidence and again at the conclusion of all the evidence, for a peremptory instruction to the jury to find and return a verdict for it, and this is the principal ground upon which it seeks a reversal of the judgment. If, as it contends, the facts of this case bring it within the rule that a servant is the best judge of his own physical strength, and the duty is on him not to overtax it, and if he misconceives the amount of strength required to accomplish a task given him, and overstrains himself, the master is not liable, then the court should have sustained its motion for peremptory instruction to the jury to find and return a verdict in its favor. While Cantrell testifies that he complained to the boss in charge of the work that the work was...