Chesapeake & O. Ry. Co. v. Holbrook
| Decision Date | 21 April 1925 |
| Citation | 271 S.W. 583,208 Ky. 488 |
| Parties | CHESAPEAKE & O. RY. CO. v. HOLBROOK. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Johnson County.
Action by Walter Holbrook, by, etc., against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Worthington Browning & Reed, of Maysville, and Kirk, Kirk & Wells, of Paintsville, for appellant.
W. M Vaughan & Son, of Paintsville, for appellee.
Appellee a boy 19 years of age, was at work as a section hand for appellant. Several crews were engaged in clearing a wreck which had occurred some 16 hours before. The tracks were cleared, but the rails had not been closed, and for this purpose two T-rails had to be cut. Two pairs of workmen, each composed of a section foreman and his helper, were engaged in this and hastening its accomplishment. To do this a T-rail cutter is placed edge down upon the rail and struck with a heavy sledge. The cutter is a wedge-like tool about 6 inches long, 1 1/2 inches thick near the top from which is beveled a head or striking surface, the other end tapering to a cutting edge of hardened steel. It is fitted on a handle about 2 feet long, and when in use is held by one man, while a second does the striking. At the time in question appellee was standing upon and steadying a rail which was being cut, when a small sliver struck him in the eye. He was carried to a hospital and treated, but it became necessary to remove his eyeball. In this suit by his next friend he recovered judgment for $3,000.
In addition to the above admitted facts, it is established by all the witnesses that they were using several T-rail cutters, and that the head of each of these was battered and spread by previous use. The foreman cutting the rail nearest Holbrook had laid aside two of these as defective and was using a third one. It was also defective in this respect, but was the best he had. There is some evidence that it was suggested at the time that they had some new cutters at the caboose, but that the officer in charge was unwilling to wait for them and directed the work to proceed, though this is denied.
The father of plaintiff testified that at the hospital he was shown the sliver taken from his son's eye; that it was about one-half the size of his finger nail and very thin with a teat on each edge. Plaintiff introduced practically all of the witnesses present at the time of the injury, and there is but little conflict in the evidence, as to the facts. A number of these qualified as to their experience in work of this character and gave it as their opinion that the sliver described came from the defective head of the cutter, while others with similar experience testify that in their opinion it came from either the rail that was being cut or from the edge of the cutter as the two came in contact.
On this evidence it is claimed that the court should have given a peremptory instruction for defendant. It is true that the cutter in question was a simple tool and the defect obvious, and if the injury had resulted to either the one who was holding the hammer or the one striking, a recovery might be denied on the ground of assumed risk. C. N. O. & T. P. Ry. Co. v. Burton, 184 Ky. 2, 211 S.W. 186; Ohio Valley Railway Co. v. Copley, 159 Ky. 38, 166 S.W. 625; Donahue v. L. H. & St. L. Ry. Co., 183 Ky. 608, 210 S.W. 491; Hoskins v. L. & N. Ry Co., 167 Ky. 665, 181 S.W. 352.
But as said in C. N. O. & T. P. Ry. Co. v. Guinn, 163 Ky. 157, 173 S.W. 357: "It may also be observed that generally this doctrine has been limited to states of case in which the servant was acting on his own volition and not when he was doing something under the eye of and by the direction of some superior officer."
In that case an iron rod had been heated and plaintiff was holding it on an anvil while his foreman was striking it with a hammer. A sliver flew from the anvil or hammer and struck him in the eye. It was shown that both the hammer and anvil were in bad condition, but that the rod was new. It was no part of plaintiff's duty to examine them, although he was close enough to observe their condition.
The court reviewed...
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