Gillespie's Ex'rs v. Howard

• Decision Date: 06 May 1927
• Citation: 219 Ky. 721,294 S.W. 154
• Parties: GILLESPIE'S EX'RS v. HOWARD.
• Court: Kentucky Court of Appeals

294 S.W. 154

219 Ky. 721

GILLESPIE'S EX'RS v. HOWARD.

Court of Appeals of Kentucky.

May 6, 1927

Appeal from Circuit Court, Johnson County.

Action by Campbell Howard against R. G. Gillespie. Judgment for plaintiff, and defendant appeals, wherein appeal was prosecuted by defendant's executors after his death. On motion to dismiss appeal. Motion overruled, and judgment reversed and remanded.

Combs &amp Combs, of Prestonsburg, and Wheeler & Wheeler, of Paintsville, for appellants.

Wells &amp Wells, of Paintsville, for appellee.

REES J.

The appellee, Campbell Howard, was employed on September 12 1923, by R. G. Gillespie to unload a carload of pipe consigned to Gillespie, and which had arrived in the yards of the Chesapeake & Ohio Railway Company in Paintsville. The car was placed on a siding, and the appellee was assisted by his son in unloading it. There were two holes in the end of the car where appellee was at work, one a very large one, and the smaller one being about 14 by 16 inches in size. After he had been at work for a short time appellee, in lifting his end of a joint of pipe, stepped into the smaller hole and was seriously injured.

The appellee brought this action against R. G. Gillespie for damages for the injury sustained by him; his petition being in two paragraphs. In the first paragraph he alleged that the defendant failed to furnish him a safe place in which to work, in that the railroad car had two large holes in the floor, through one of which he fell and was injured. In the second paragraph of the petition he alleged that Gillespie promised to pay him the damages sustained by him because of his injury. On the trial of the case, plaintiff recovered a judgment for $500, and from that judgment this appeal is prosecuted.

The case was tried at the January, 1926, term of the Johnson circuit court, and the defendant's motion and grounds for a new trial were overruled at that term and an appeal to this court granted, and he was given until a day of the next regular term of court to file his bill of exceptions. At that time the next regular term of the Johnson circuit court would have convened on the first Monday in July, 1926, but on the 28th day of March, 1926, the General Assembly of Kentucky amended section 965 of the Kentucky Statutes, changing the terms of court in Johnson county, so that the next regular term of court at which appellant could file his bill of exceptions was held the second Monday in November, 1926. 1926 Acts, p. 167. At the November term of court the bill of exceptions was filed, and on January 7, 1927, a transcript of the record was filed in this court.

The defendant, R. G. Gillespie, who was a resident of Pittsburg, Pa., died on March 15, 1926. On April 14, 1927, appellee filed a motion to dismiss the appeal because R. G. Gillespie had been dead for more than one year from the time in which an order of revivor should have been entered. On April 18, 1927, Blanche N.H. Gillespie, Union National Bank of Pittsburg, and George E. Alter, personal representatives of R. G. Gillespie, deceased, filed their petition asking that this action be revived in their names as his personal representatives. Section 767 of the Civil Code of Practice provides that the provisions of title 11 shall, so far as applicable, regulate cases in the Court of Appeals. The earliest time at which the record could have been filed in this court was during the September, 1926, term, and the revivor is therefore in time. Ison v. Wolfe, 150 Ky. 34, 149 S.W. 1124. Furthermore, the personal representatives, in a case like this one, have the right to prosecute an appeal to this court as they represent the estate of the party against whom the judgment was obtained. Cray v. Wilson, 43 S.W. 186, 19 Ky. Law Rep. 1153; Hopkins v. Hopkins, 91 Ky. 310, 15 S.W. 854, 12 Ky. Law Rep. 945; Spalding, Administrator, v. Wathen, 7 Bush 659. Appellee's motion to dismiss the appeal is therefore overruled, and the motion of the personal representatives will be treated as a motion to prosecute the appeal in their names, and it is sustained.

To authorize an affirmance of this case, the appellee invokes the universally recognized rule that the master must exercise reasonable and ordinary care to furnish his servant with safe appliances and a reasonably safe place to work. This rule, however, is based on the possession, use, and control by the master of appliances used and the premises where the servant's work is performed, and is not ordinarily applicable to cases where such appliances or premises are owned and controlled by a third person. We do not think the rule invoked is applicable here, as the defective car was the property of the Chesapeake & Ohio Railway Company or of some connecting carrier, and the defendant was merely the consignee of the pipe loaded on the car, and made no use of the car except to unload it. In 18 R. C. L. 585, it is said:

"As a general rule the peculiar duties that an employer owes to his employees relate only to the premises and instrumentalities over which the employer has complete control and dominion. Otherwise he might be made responsible for the negligence of third persons with reference to premises he had never seen, and about the condition of which he knew, and perhaps could know, nothing."

And, on page 590 of the same volume, it is said:

"Both on principle and authority, it is clear that the employer is answerable for defects in any instrumentalities which he has temporarily taken over from the owner and made a part of his own plant. In such cases the elements of possession and the exercise of control are decisive. Manifestly, no distinction can logically be based upon the bare circumstance that he has a merely qualified right of property in them. So far as regards his obligations to his employees, he must be considered as the owner pro tempore. This principle is applicable whether he has borrowed the appliance in question, or has hired it for a specific consideration, or has taken possession of it for a definite or indefinite period, with a view to the performance of certain work in which he and the owner are both interested."

The appellee relies upon the case of American Machine Co. v Ferry, 141 Ky. 372, 132 S.W. 546, but in that case the master, by a foreman, had created the danger and directed the servant to work at the place rendered unsafe without warning him of the danger. In Haskell & Barker Car Co. v. Przezdziankowski, 170 Ind. 1, 83 N.E. 626, 14 L. R. A. (N....