Coral Ridge Clay Products Co. v. Collins

• Decision Date: 01 November 1918
• Citation: 205 S.W. 958,181 Ky. 818
• Parties: CORAL RIDGE CLAY PRODUCTS CO. v. COLLINS.
• Court: Kentucky Court of Appeals

205 S.W. 958

181 Ky. 818

CORAL RIDGE CLAY PRODUCTS CO. v. COLLINS.

Court of Appeals of Kentucky.

November 1, 1918

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by John Collins against the Coral Ridge Clay Products Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Blakey Quinn & Lewis, of Louisville, for appellant.

P. D Crawford and H. M. Denton, both of Louisville, for appellee.

HURT J.

The appellee, John Collins, a young man of about 33 years of age, was employed as a laborer by the appellant, Coral Ridge Clay Products Company, which was engaged in manufacturing bricks and other products of clay, at its plant near South Park, in Jefferson county. The clay was brought into the plant by cars upon an elevated tramway, and dumped into a shed room, which was separated from the "pan" room, or where the clay was made into finished products, by a wall. Underneath the floor of the shed room were two troughs, in which belt conveyors were operated, which carried the clay into the "pan" room. These troughs were covered by loose boards, laid upon the floor, so that the clay could not come into contact with the belts, except in the quantities desired. The clay was dumped from the cars on the overhead tramway into the floor of the shed room, and was pulled into the troughs and upon the belt, which carried it into the "pan" room. The pulling in of the clay into the troughs was called "feeding the belts," and the servant who performed this service was called a "feeder." The "feeding" could be done from either side of the room, and was done by removing one of the boards from over the trough, and pulling in the adjacent clay, and then another, until all the clay should have been "fed" in. The feeder in his operations used a hoe, with a stout hickory handle, about 2 1/2 feet in length. Against the wall of the shed room, adjoining the "pan" room, was a platform, several feet from the floor, upon which stood a motor.

The appellee, Collins, had been working as a laborer at this plant for over a year, and had at different times "fed the belt" in each of the troughs. On the morning of June 22, 1915, he was set to work "feeding" one of the belts at the end of the room adjoining the "pan" room. According to his statement, on this occasion an unusual quantity of clay had been piled into the room, because the manager or foreman was apprehensive of rain. Hence the place where he was set to work was very much restricted in size. The clay was heaped upon each side of him, and in front, from a height of five feet, to near the ceiling, and the place where he must work was reduced to a very small space. The cars were continuing to bring in and dump clay into the room, and it was also dumped in the rear of him. He became apprehensive of danger to himself from the dumping of the cars, and made complaint to the foreman, stating that he feared it was dangerous to work in the place where he was. The foreman then took him to the other side of the room, but, finding no place in which he could work there, he brought him back to the end of the room where he had been at work when he made the complaint, and, stating that there was no other place in which he could work than the one where he had been working, assured him that there was no danger of his working at that place, if he would go under the platform upon which the motor stood when the cars were being emptied of their contents, and, when the cars should return to the "pit" to be reloaded, for him to go on "feeding." He obeyed the instructions of the foreman, and when the cars would come in on the overhead tramway he went under the platform, and remained until their contents were emptied, when he would return to work. In front of him, and right over the trough, there was a large clod of clay, or shale, which weighed from 350 to 500 pounds. It was covered with dirt, and was far enough away from him that he did not think that, in "feeding" in the clay, he would reach it before the noon hour. At that time it was about from 30 minutes after 7 to 8 o'clock.

Shortly after the foreman had assured him that there was no danger in the place, if he would go under the platform when the cars were being unloaded, he placed his hoe under a board to remove it, when the large clod fell upon the handle of his hoe, pressed the end of the handle into the right side of his abdomen, and the weight of the clod crushed him down into the clay at his side. He called for help, and the "feeder" of the other belt ran to his assistance, but was unable to remove the clod or to extricate him. Another man came to his assistance, and the two succeeded in extricating him. He was unable to continue working. The company manager called a physician, who removed him in a buggy to his home, where he was confined to bed for four weeks, and had not been able to perform manual labor up to the time of the trial, which was 20 months afterward. He stated, furthermore, that the blow and pressure of the hoe against his abdomen had caused him to be afflicted with a hernia, and that he had been caused to suffer a great deal of pain. He was corroborated as to the manner in which he received his injuries by the two men who extricated him from his position under the clod. He was corroborated as to the extent of his injuries by two physicians, who testified that his injuries were permanent. His statement as to the conditions in the shed at the time of his injury, and as to his making complaint of his apprehension of danger, and the assurance that the place was safe, was contradicted by the foreman, and certain physicians testified that he had not suffered any injuries. A little over two months after the clod fell upon him he was taken by the physician who waited upon him into Louisville to see the manager of appellant, who then called into the meeting two agents of an insurance company, which had insured appellant against damages for injuries suffered by its employés, and a settlement was made between appellee and appellant, by which Collins received $60, and his physician $65, and Collins then executed a release to appellant.

Some months thereafter appellee instituted this action against appellant to recover damages for his injuries, basing his action upon the alleged negligence of appellant in failing to use ordinary care to provide him a reasonably safe place in which to work, and which he alleged resulted in his injuries. The appellant denied any negligence upon its part, and relied upon a plea of contributory negligence, and also pleaded the settlement with and release executed by appellee in bar of his action. The appellee denied that any negligence upon his part contributed to his injuries, and alleged that settlement and release relied upon was procured by the fraud, misrepresentation, and coercion of appellant, and tendered to it the amount received by him through the alleged pretended settlement and release. The allegations of fraud, misrepresentation, and coercion were denied by a surrejoinder. A trial of the action before the court and a jury resulted in a verdict and judgment for $1,000 in damages in favor of appellee. The appellant's motion for a new trial was overruled, and it has appealed, and seeks a reversal of the judgment upon five grounds: (1) The court erred in overruling appellant's motion for a directed verdict in its favor, at the close of the evidence for appellee, and at the close of all the evidence. (2) The evidence as to the appellant being insured against damages for injuries suffered by employés was erroneously admitted. (3) The evidence as to fraud or coercion in obtaining the settlement was insufficient to sustain the verdict. (4) The instruction relating to an assurance of the safety of the working place by appellant was erroneous. (5) The testimony of nonexperts as to appellee's soundness of mind was not competent, and was erroneously admitted.

(a) The doctrine is elementary that it is the duty of the employer to exercise ordinary care to provide his servant with a reasonably safe place in which to perform the duties to which he assigns him. If the employer has knowledge, or if, by exercising that care which a prudent man would employ to know the condition of the servant's working place, he would have knowledge, that the place was unsafe, and the servant does not know of its unsafe condition, and could not discover it, in the performance of his duties, by the exercise of such care as a prudent man would employ under the same circumstances, and the unsafe conditions cause the servant to sustain an injury, the employer is liable to him in damages.

It is also well settled by many adjudications of this court that if the place assigned the servant to work is unsafe, and the servant is apprehensive that it is dangerous, and so represents to the employer, who assures him that it is safe and directs him to proceed with the work, the servant may rely upon the opinion of his employer, and does not assume the danger of continuing to work in the place, if the danger is not so open and obvious that an ordinarily prudent man would not risk it. Southern R. Co. v. Hart, 64 S.W 650, 23 Ky. Law Rep. 1054; Wake & Co. v. Price, 58 S.W. 519, 22 Ky. Law Rep. 696; Long v. I. C. R. R. Co., 113 Ky. 806, 68 S.W. 1095, 24 Ky. Law Rep. 568, 58 L. R. A. 237; Lasch v. Stratton, 101 Ky. 672, 42 S.W. 756, 19 Ky. Law Rep. 889; Smith v. Ky. Lumber Co., 78 S.W. 120, 25 Ky. Law Rep. 1386; Yellow Poplar Lumber Co. v. Bartley, 164 Ky. 763, 176 S.W. 201; Stewart Dry Goods Co. v. Boone, 175 Ky. 273, 194 S.W. 103; I. C. R. R. Co. v. Keebler, 84 S.W. 1167, 27 Ky. Law Rep. 305; L. & N. v. Adams, 148 Ky. 513, 147 S.W. 384. It being the employer's duty to provide the servant a safe place in which to...