Dryden v. H.E. Pogue Distillery Co.

• Decision Date: 27 September 1904
• Citation: 82 S.W. 262
• Parties: DRYDEN v. H. E. POGUE DISTILLERY CO.
• Court: Kentucky Court of Appeals

82 S.W. 262

DRYDEN v. H. E. POGUE DISTILLERY CO.

Court of Appeals of Kentucky.

September 27, 1904

Appeal from Circuit Court, Mason County.

"Not to be officially reported."

Action by Robert W. Dryden against the H. E. Pogue Distillery Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Allan D. Cole and Frank P. O'Donnel, for appellant.

Thos R. Phister and Pogue & Pogue, for appellee.

BARKER J.

The appellant, Robert W. Dryden, instituted this action to recover damages against the appellee, the H. E. Pogue Distillery Company, for the loss of his hand, which he alleges was occasioned by the negligence of the agents and servants of the employer company. A trial of the case resulted in the court's sustaining a motion by appellee at the close of appellant's (plaintiff's) testimony for a peremptory instruction to find for it, from which judgment this appeal is prosecuted. For the purpose of reviewing the soundness of this ruling of the trial court the evidence of appellant must be considered as true.

The cause of action, as stated in the petition, is, substantially: That appellant was inexperienced on the subject of machinery. That, as an employé of appellee, he was directed by its superintendent, who had authority so to do, to place himself under the orders of the miller, Will Hays, and to do as he was told. This he did. That on the day he was hurt, as about 3:30 o'clock a. m., when it was dark, he was put to work by Will Hays in raking the meal from what he calls the "shaker" into the rollers, by which it was ground, and which were about five inches below the shaker. That he was not furnished with light sufficient to discern the danger he was in, but was assured by the miller, his superior, that it was safe to do the work in hand without a light, although it was very dangerous so to do, owing to the proximity of the rollers to the shaker, of which he was ignorant, but which appellee knew. That relying upon this assurance of safety, and in ignorance of the danger attendant upon the duty, he continued to work until, by accident, his hand was caught in the roller, and crushed in such manner as to render amputation necessary. All of the allegations of the petition were controverted by the answer, which also contains affirmative defenses, not necessary for the purposes of this appeal to be noticed.

Appellant's (plaintiff's) evidence consisted mainly of his own testimony, which fully substantiated the allegations of the petition. Shearman and Redfield, in their work on the Law of Negligence, volume 1, section 186 (5th Ed.) say: "Where a servant, seeing a defect, and notifying his master thereof is nevertheless ordered to continue his work without any express or implied promise of a remedy, it has been sometimes held that he cannot recover, on the theory that from that time he assumes the risk. But this is unsound. A master's order is...