Crush v. Kaelin

• Decision Date: 29 September 1967
• Citation: 419 S.W.2d 142
• Parties: Albert L. CRUSH, Appellant, v. Ben M. KAELIN, Jr., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 142

419 S.W.2d 142

Albert L. CRUSH, Appellant, v. Ben M. KAELIN, Jr., Appellee.

Court of Appeals of Kentucky.

Sept. 29, 1967.

Wallace H. Spalding, Jr., Louisville, for appellant.

W. Scott Miller, Jr., Louisville, for appellee.

PALMORE, Judge.

The appellant, Crush, hired three carpenters including the appellee, Kaelin, to help him build a house. Kaelin was injured on the job and sued Crush for negligent failure to provide him a safe place and safe materials or equipment with which to work. Cf. KRS 338.030. Crush appeals from a $25,000 verdict and judgment against him in Kaelin's favor.

The case was submitted to the jury under the theory that the employment was within the coverage of the Workmen's Compensation Act, KRS Chapter 342, so that Crush could not avail himself of the defense of contributory negligence pleaded in his answer. KRS 342.410. Crush's motions for a directed verdict and for a judgment n.o.v. were overruled. It is our opinion that Chapter 342 was not applicable, that if Crush was negligent Kaelin necessarily was negligent also, and that Crush was and is entitled to a judgment n.o.v.

Early in the year 1963 Crush, who lived in Louisville, wished to build for his personal use a vacation cottage or lodge on a lot he owned at Guist Lake in Shelby County. He was a distributor and salesman of power transmission equipment and had little or to familiarity with the arts of carpentry and construction. He secured plans from a lumber company. Kaelin, a regular employe of a building contractor, had done some construction work for Crush's brother, who suggested to Crush that he try to get Kealin to help in his spare time. Kaelin agreed to do so, and for a time the work was done by Crush, Kaelin and Crush's young son. After a month or so, at Crush's suggestion Kaelin procured the assistance of two other capenters regularly employed by the same contracting firm for which he worked. The three carpenters worked for Crush parttime and he paid them on an hourly basis.

When the walls had been raised and rafters put in place it became necessary for the carpenters to erect scaffolding so they could work from a level above the surrounding grade. Shortly after completion of the scaffold one of its supporting members, a 2-by-4, broke under the weight of Kaelin and one or both of the other two carpenters, whereupon Kaelin fell a distance of several feet to the bottom of an excavation which had been made for the foundation and basement wall and sustained the injury that precipitated this litigation.

Crush did not participate in and was not present during construction of the scaffold and, in fact, did not see it until after the accident had occurred. The claimed negligence on his part is that he had failed (1) to have the excavation backfilled and (2) to provide materials suitable for the construction of a safe scaffold. Without pursuing the details, it may be assumed that Kaelin's evidence was sufficient to support a finding of negligence in these respects. It may be assumed also, though we need not so decide, that Kaelin was a servant rather than an independent contractor.

If it is true that Crush should have caused the excavation to be backfilled, so that it would be easier to construct an adequate scaffold and less hazardous to work on it, and that he should have provided heavier and stouter lumber for use as scaffolding, Kaelin nevertheless was fully aware of his having failed to do so when he (Kaelin) chose to build and use a scaffold with the materials at hand and under the circumstances as they were. 'Where the master has failed to provide the servant a safe place to work, assumption of risk by the servant applies if the servant knows of the danger and continues to work. * * * Where a workman continues to work with inadequate or defective tools he assumes the risk, if the defect is known or is obvious to a person of ordinary prudence, or that continuous use is liable to cause injury.' Batsel v. Brown, 310 Ky. 524, 221 S.W.2d 78, 80--81 (1949). See also Mitchell v. Franklin, Ky., 398 S.W.2d 707 (1966).

Kaelin was experienced in the building and use of scaffolding. If Crush's failure to do that which he should have done created an unreasonable risk of harm to Kaelin, Kaelin was the first who should have recognized and appreciated it. He was the old hand, Crush the greenhorn.

The concept of assumed risk as distinguished from contributory negligence has been abandoned in the recent case of Parker v. Redden, Ky., 421 S.W.2d 586 (1967). The doctrine that one who assumes a known risk is barred from recovery regardless of the reasonableness of his choice has ceased to be legal tender in Kentucky. Nevertheless, 'in a situation where the defendant's already-committed negligent acts of which the plaintiff is aware have created a risk also of which the plaintiff is aware * * * if there was no substantial necessity or urgency for the plaintiff's subjecting himself to the risk, or if the risk was one that easily could have been eliminated before the plaintiff took action, the plaintiff who took the risk must be considered as a matter of law to have acted unreasonably and he will not recover. * * * We think any problem can be eliminated by weighing reasonableness in the light of the necessity or urgency for the action and the difficulty of removing the risk before acting.' Id., p. 592.

There was no 'substantial necessity or urgency' for Kaelin's subjecting himself to the risk he claims was thrust upon him in this case. He was working as and when he pleased during off-hours from his regular employment. So far as we can discern from the record he was under no compulsion of any kind unless it was the need for more money than he was earning at his...