Charles Taylor Sons Co. v. Hunt

• Decision Date: 24 February 1915
• Citation: 163 Ky. 120,173 S.W. 333
• Parties: CHARLES TAYLOR SONS CO. v. HUNT.
• Court: Kentucky Court of Appeals

173 S.W. 333

163 Ky. 120

CHARLES TAYLOR SONS CO. v. HUNT.

Court of Appeals of Kentucky.

February 24, 1915

Appeal from Circuit Court, Greenup County.

Action by Carlisle Hunt against the Charles Taylor Sons Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. E Fullerton, of Greenup, for appellant.

Thos E. Nickel, of South Portsmouth, and Richard D. Davis and S S. Willis, both of Ashland, for appellee.

HURT J.

The Charles Taylor Sons Company is a corporation engaged in the manufacture of fire bricks in Greenup county, and is the owner of a tramroad extending from its shale banks to the place of manufacture. On this tramroad, a hand car is operated for the purpose of transporting men and other things, and the appellee, Carlisle Hunt, claims that while in the employ of the appellant as a laborer, and under the direction and supervision of James Young, the foreman of the appellant, he was assisting in operating the hand car. The foreman, Young, and one Timberlake, and the appellee were the only persons upon the hand car at the time the injury complained of by appellee occurred, and they were engaged in repairing the tramroad. The car was propelled by means of levers, which were operated by hand, and at the time the injury complained of by appellee was received he was at the rear end of the car, engaged in working a lever, while Young, the foreman, and Timberlake were at the front end of the car, engaged in the same way.

It seems that the brakes to the car were connected with rods, which extended up from underneath to the platform of the car, and were there attached to a plate or pedal, and the brakes were operated by a pressure of the foot upon that pedal, which caused the brakes to apply immediately to the wheels of the car. The appellee claims that, under the direction of Young, the foreman, they were propelling the car along with unusual speed, when the foreman, without any warning of his intentions to do so, suddenly sprang with all of his weight and force upon the pedal which operated the brakes, causing them to apply suddenly, and to stop the car with such abruptness that the appellee, who was holding on to the handle bar, was caused to fly up in the air, and, holding on to the bar he came down with such force that his hip joint came in contact with considerable violence with an iron bolt, which was in the framing, thereby bruising the flesh and ligaments around the hip joint, and affecting the bones of his hip, and causing him great pain and suffering, and as the direct result, his hip was stiffened, and his ability to earn money permanently impaired. This conduct of the foreman, under the circumstances, he claims was such negligence and reckless disregard of his safety as amounts to gross negligence upon the part of the foreman.

The appellant by answer simply traversed the allegations of the petition, and, in addition, alleged affirmatively that the appellee, while in its employ, propelled and operated the car and knew all about the machinery of it, and when to apply the brakes, and the effect of applying the brakes, and had a general knowledge of the result of the propelling, speeding, and stopping, and applying the brakes upon the car. No plea of contributory negligence of any kind was interposed. These affirmative allegations were traversed by reply.

A trial of the case was had, which resulted in a verdict of the jury, and judgment of the court awarding to the appellee the sum of $500 in damages. The appellant's grounds and motion for a new trial being overruled, it has appealed to this court.

The appellant in its brief complains that the verdict of the jury was contrary to law, and flagrantly against the weight of the evidence; that the instructions given by the court upon motion of appellee were misleading and confusing, and defective in form; and that the court ought to have granted it a new trial, because of newly discovered evidence of a substantial character in its favor.

A contention that a verdict of a jury is contrary to law does not amount to a ground for reversal, unless the error is specifically set out and complained of. American Credit Co. v. National Clothing Co., 122 S.W. 840; Jones v. Wocher, 90 Ky. 230, 13 S.W. 911, 12 Ky. Law Rep. 105.

The contention that the verdict is flagrantly against the evidence is not tenable. The appellee is substantially corroborated by the witness Timberlake as to the manner and circumstances under which he received his alleged injury. The other witness, who...