Cincinnati, N.O. & T.P. Ry. Co. v. Estes
| Decision Date | 21 September 1920 |
| Citation | 189 Ky. 54,224 S.W. 503 |
| Parties | CINCINNATI, N. O. & T. P. RY. CO. ET AL. v. ESTES. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Lincoln County.
Action by George Estes against the Cincinnati, New Orleans & Texas Pacific Railway Company and another. Judgment for plaintiff and defendants appeal. Affirmed.
K. S Alcorn, of Stanford, and Galvin & Galvin and Edward Colston all of Cincinnati, Ohio, for appellants.
Emmet Puryear, of Danville, and George D. Florence, of Stanford for appellee.
The appellee, George Estes, was a carpenter of one year's experience and in the employment of the appellants, Cincinnati, New Orleans & Texas Pacific Railway Company and the Southern Railway Company. James Snyder was the foreman of the crew of employes with whom the appellee was serving. They were directed to go from Lexington to Danville, and there to repair a shop belonging to the appellant railroad companies. The shop was a building about 40 feet in length, 20 feet in width, and the eave of the roof was about 20 feet from the ground. The roof slanted only one way, and had a pitch of about 6 inches to the foot. The roofing was of a character of heavy paper suitable for that purpose, but by use and wear had deteriorated in quality, and it was thought to be necessary to tear off the old roof at certain places and replace it with a new one. Certain repairs were also purposed to be made upon the doors, windows, and other portions of the shop, and certain small buildings near by were to be repaired. The day upon which the carpenters went to Danville to repair the shop there was a very strong, fierce gale of wind blowing, which seemed to have its purpose set to continue until the end of the day. The paper for the new roof, at the direction of the foreman, was taken out by the employès, who were under his authority, and carried to the shop for the purpose of putting it upon the roof, when the appellee became apprehensive that the roof of the shop would be a dangerous place to work, in handling the paper, on account of the high, fierce wind then blowing, and that the work necessary in removing the old paper and putting on the new under the conditions prevailing would be a work hazardous and attended with danger.
According to the evidence introduced in behalf of appellee, he represented his misgivings of the safety of the roof as a place of work, under the conditions, to the foreman, and requested that he be permitted to engage in making the other intended repairs, in doing which he would be working upon the ground. The foreman overruled his objections, and stated that they had been sent there to do that work, and they would have to do it, and directed him to go on upon the roof, and at the same time stated that it was not so dangerous but what they would go up on the roof and do the work. Estes had had but little experience in putting on and taking off paper roofing. Snyder had had 13 or 14 years' experience as a carpenter. Estes deposed that, knowing of the long experience of Snyder, he considered that he knew more about the danger of handling roofing of the character that was to be handled, under the conditions, than he did, and, although apprehensive that it was somewhat hazardous under the circumstances, submitted to the judgment of Snyder, and relied thereon, that the work was not dangerous, and the direct command to go upon the roof and proceed with the work. Thereupon Estes and another of the employes went upon the roof, and Estes tore off a roll of the roofing, and stepped within 3 or 4 feet of the edge of the roof, and threw it off. Just at that time the wind took up a piece of the roofing, and blew it against Estes with such force, that he was blown off the building and fell to the ground, breaking his arm at the elbow and otherwise bruising him. He endured much pain and suffering from the broken arm. The result was that the arm became stiffened at the elbow, permanently crippling him, and rendering him unable to pursue his avocation as a carpenter, or to do any kind of work requiring a use of the arm, as in handling a hammer or saw, or to elevate his hand to his mouth. Estes did not loosen the piece of paper from the roof, which blew against him and knocked him from the roof, and only two other persons were upon the roof at the time, one Kelley and Snyder, the foreman.
The evidence does not prove that the piece of the roofing, which blew against appellee and threw him headlong to the ground, was loosened by either Kelley or Snyder, and in fact they depose that it was not, and hence it would seem that it was probably loosened from its hold by the action of the wind, probably assisted by the actions of the men in walking or working upon the roof. Having instituted this action against his employers for damages on account of the injuries, a jury awarded him the sum of $1,000, and the court rendered a judgment in his favor accordingly. The defendants below have appealed from the judgment and seek a reversal of it, chiefly upon the ground that the trial court erred to the prejudice of their substantial rights in denying their motion for a directed verdict in their favor at the close of the evidence for appellee, and at the close of all the evidence. The ground upon which they contend that the court should have determined the cause in their favor by a peremptory direction to the jury to find a verdict for them is that the evidence for appellee proves that he was aware of and appreciated the unsafe character of the place, under the prevailing conditions, in which he was working when injured, and that his knowledge of the conditions which made the place and work hazardous was equal to that of the foreman, who represented the employers, and for that reason he had assumed all the risks in performing such work at such a place and under such conditions, and for such reason that he ought to have refused to engage in the work, and to have disregarded the positive command of the foreman, as well as his assurance that the work was not dangerous.
To sustain their contention they cite the cases of Wilson v Chess &...
To continue reading
Request your trial