Crane v. T.J. Congleton & Bro.

• Decision Date: 26 February 1909
• Parties: CRANE v. T. J. CONGLETON & BRO.
• Court: Kentucky Court of Appeals

116 S.W. 341

CRANE v. T. J. CONGLETON & BRO.

Court of Appeals of Kentucky.

February 26, 1909

Appeal from Circuit Court, Franklin County.

"Not to be officially reported."

Action by Andrew J. Crane against T. J. Congleton & Bro. Judgment for defendants, and plaintiff appeals. Affirmed.

R. B Franklin, L. W. Morris, and Jno. W. Rodman, for appellant.

B. G Williams, Hazelrigg, Chenault & Hazelrigg, and Ira Julian for appellees.

CARROLL J.

In this action by the appellant, who was plaintiff below, against the appellees, who were defendants below, to recover damages for personal injuries, the trial before a jury resulted in a verdict in favor of appellees. From the judgment entered upon this verdict this appeal is prosecuted.

The alleged errors complained of consist in the giving and refusing of instructions, the rejection of evidence, and the refusal to permit the jury to view the premises. As the error in respect to the instructions is the principal one assigned it will be necessary to incorporate in this opinion the material parts of the petition and amended petitions filed by the plaintiff for the purpose of determining whether or not the court erred in the particular mentioned. The petition, which was filed in August, 1907, after charging that the defendants were the owners and operators of a sawmill, at which the plaintiff was employed, proceeds as follows: "That on April 3, 1907, while plaintiff was in the employ of defendants as aforesaid, and while engaged in the performance of the work for which he had been employed, the defendants by and through the gross negligence of their agent, employé, and sawyer, Niles Morse, in operating said steam sawmill, without warning, but unexpectedly to this plaintiff, suddenly, violently, and forcibly put the carriage upon which logs are conveyed against the saw to be cut into lumber, into motion, thereby throwing plaintiff down upon said carriage, and causing him to be rapidly carried with said carriage on to and against the saw, so that he, this plaintiff, by the gross negligence and carelessness of the defendants as aforesaid, was sawn, cut, and bruised, to his great physical and mental pain, suffering, and anguish, to his serious and permanent injury and damage in the sum of $25,000." A general demurrer to the petition having been overruled, the defendants filed an answer, in which, after admitting that Niles Morse was their sawyer, they denied specifically all the averments of the petition, and further pleaded that the injuries were received by the plaintiff by reason of his contributory negligence. In a reply the affirmative matter in the answer was controverted. On January 7, 1908, the plaintiff filed an amended petition, which by leave of court he withdrew on January 22, 1908, and filed in its place the following amended petition: "The plaintiff for amendment to his original petition herein states that since the last term of this court he has learned, and he now alleges, and states it to be a fact, that Niles Morse, the sawyer of the defendants, through whose gross negligence the injuries alleged to have been sustained by the plaintiff in the petition were caused, was a reckless, inexperienced, and incompetent sawyer, and unfit to perform the duties that devolve upon a competent sawyer of a sawmill, and he states that said Niles Morse's incompetency and unfitness for said position as a sawyer, and to perform the duties of a sawyer, was well known to the defendants, or could have been known to them by the exercise of ordinary care, and the plaintiff says he did not know that Niles Morse was a reckless, inexperienced, and incompetent sawyer, or that he was unfit for said position or to perform the duties of a sawyer until he learned it as above alleged, and the plaintiff says he did not have equal means with the defendants of knowing of said Niles Morse's incompetency and unfitness to perform the duties of a sawyer; that the said Niles Morse, the sawyer of defendants, was superior in authority to the plaintiff in the operation of said sawmill." The averments of this amended pleading were denied by an answer. With the pleadings in this condition, the parties went to trial, and upon the conclusion of all the evidence the plaintiff on January 29th filed the following amended petition: "For amended petition herein and by leave of court, the plaintiff says that the injuries received by him as set forth in the petition and amended petition were caused by the incompetency and inexperience of Niles Morse, the sawyer, agent, and employé of the defendants while he was engaged in operating said sawmill."

Counsel for plaintiff asked the court to give the following instructions, which were refused: "(a) If the jury believe from the evidence, whilst in the performance of his duties as off-bearer in defendant's sawmill, the plaintiff was by the gross negligence of the defendants' sawyer and employé, Niles Morse, caused to be violently drawn through a band saw of defendants' sawmill, and thereby injured, they should find for the plaintiff such sum in damages as will fairly compensate him for his mental and physical suffering, if any, for his loss of time, if any, and for his physical disability, if any, and for his permanent impairment of his power to earn money, if any; also for any physical suffering that it is reasonably certain from the evidence he will endure in the future, not to exceed $25,000, the amount claimed in the petition.

"(b) The court instructs the jury that gross negligence is the failure to take such care as a person of common sense and reasonable skill in like business, but of careless habits, would observe in avoiding injury to his own person or life under circumstances of equal or similar danger to the plaintiff on the occasion under consideration."

Thereupon the court upon its own motion instructed the jury as follows:

"(1) The court instructs the jury that if they believe from the evidence that Niles Morse, the sawyer in defendants' sawmill at the time plaintiff claims he was injured, was an incompetent sawyer, and that the defendants knew of his incompetency, or by the exercise of ordinary care could have known of his incompetency, and they further believe from the evidence that the plaintiff was injured by and through the incompetency of the said Niles Morse as a sawyer operating said sawmill, they should find for the plaintiff such sum in damages as will fairly compensate him for his mental and physical suffering, if any,

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