Duncan v. Gernert Bros. Lumber Co.

• Decision Date: 02 June 1905
• Parties: DUNCAN v. GERNERT BROS. LUMBER CO.
• Court: Kentucky Court of Appeals

87 S.W. 762

DUNCAN v. GERNERT BROS. LUMBER CO.

Court of Appeals of Kentucky.

June 2, 1905

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

"Not to be officially reported."

Action by J. C. Duncan against the Gernert Bros. Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

E. E. McKay, for appellant.

R. C. Kinkead, for appellee.

NUNN, J.

The appellee in 1901 sued the appellant for damages on account of injuries received while in its employment. A demurrer was sustained to his petition, and he filed an amended petition, and a demurrer was also sustained to it and the original, and, he failing to plead further, the court dismissed his action. The only question is whether he stated a cause of action. He, in substance, alleged that his injuries were received by reason of the gross negligence of the foreman or superintendent of appellee, and he then stated the particulars as to how he received his injuries, to the effect that there was a ladder which had been placed against a pile of lumber belonging to the appellee, and that he was directed by the superintendent of the appellee to go up the ladder and saw off some projecting timbers; that in compliance with this order he ascended the ladder to the top of it, and when standing thereon he undertook to comply with the orders given him, and while so doing, without fault on his part, he fell from the ladder about 20 feet, striking the ladder in his descent, and striking the ground below with great force, etc. He also alleged that appellee's agents and servants in charge knew, or by the exercise of reasonable diligence could have known, that the ladder was too short, and that he did not know or observe at the time the dangerous condition of the ladder or of the work until it was too late to prevent the injuries. He did not allege who produced or placed the ladder in its position, or give any reason why he could not see that the ladder was too short to enable him to do the work in safety.

If the ladder was too short and was dangerous to work upon, it was certainly obvious to him when he reached the top of it. The only negligence alleged was that the ladder was too short, and that was certainly patent to him when he ascended it.

Wherefore the judgment of the lower court is affirmed.