Hatfield v. Adams

• Decision Date: 09 October 1906
• Citation: 96 S.W. 583,123 Ky. 428
• Parties: HATFIELD v. ADAMS.
• Court: Kentucky Court of Appeals

96 S.W. 583

123 Ky. 428

HATFIELD v. ADAMS.

Court of Appeals of Kentucky.

October 9, 1906

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by Mike Hatfield by his next friend against W. Q. Adams. Judgment for defendant. Plaintiff appeals. Affirmed.

W Scott Morrison and W. T. Owen, for appellant.

Miller & Todd and Glenn & Ringo, for appellee.

SETTLE J.

The appellant, Mike Hatfield, an infant, by his father and next friend, brought this action in the court below to recover of the appellee, W. Q. Adams, damages for personal injuries alleged to have been sustained through the negligence of the latter's employé. It was alleged in the petition that appellee is the publisher of a newspaper in the city of Owensboro, called the "Owensboro Daily Inquirer," and owner of an office, printing presses, and machinery for publishing the same and doing other printing; that the paraphernalia of the printing office includes a machine known as a "folder," which contains many wheels, cogs and knives and is used for folding and trimming papers after they are printed. That one Edward Pendleton, was the foreman of appellee's distributing department at the time the infant appellant received the injuries complained of, and the latter was in the employ of appellee as a paper carrier in the city of Owensboro; that on the occasion referred to while in appellee's printing office waiting to receive for delivery in the city, his share of the papers of that day's issue, appellant was ordered by Pendleton to remove from the folding machine papers and trimmings, in attempting to obey which order his right hand was caught in the revolving cogs and thereby cut, mangled, and permanently injured. It was further averred in the petition that the folder is a dangerous machine which was well known to appellee's servant, Pendleton, but not to appellant, and that Pendleton was guilty of negligence in ordering one of his youth and inexperience to perform the duty of removing the papers and cuttings therefrom, and in no event should he have been ordered to perform the service in question without being warned of the danger attending the same, and instructed how to avoid it.

Appellee's answer contains a traverse of all the material averments of the petition and averred the following facts: "For further answer said defendant states that at the time and place mentioned in the petition the said plaintiff, Mike Hatfield, against the will and in defiance of the orders of the defendant, plaintiff voluntarily placed his hand in contact with the revolving cogs of said folding machine and thereby sustained all the injury that he did sustain on that occasion, being the same injuries complained of in the petition. At the time of said injury the said plaintiff knew of the cogs, wheels, and belts of said machine, which were plainly visible to him, and knew of the danger of allowing his hand to come in contact with them, but without the knowledge or consent of the defendant, he suddenly and voluntarily reached his hand to said cogs, and placed it in contact therewith as aforesaid." The answer closed with a plea of contributory negligence on the part of the appellant. The reply to the answer contains a simple traverse of its affirmative statements.

At the conclusion of appellant's evidence introduced on the trial in the court below, appellee asked the court for a peremptory instruction, but the same was refused, thereupon appellee introduced his evidence, which was followed by that of appellant's in rebuttal. At the conclusion of all the evidence, appellee renewed the motion for a peremptory instruction which the court sustained, and the jury returned a verdict in behalf of appellee in obedience to the peremptory instruction. Upon this verdict judgment was entered dismissing the action and allowing appellee his costs, to which, as well as the ruling of the court in granting the peremptory instruction, appellant at the time excepted, and his motion for a new trial having been overruled, by this appeal he seeks a reversal of the judgment.

The only ground relied on by appellant for a new trial was alleged error of the lower court in giving the peremptory instruction, consequently other rulings excepted to in the lower court, but not presented on the motion for a new trial, will not be considered on appeal. McLain v. Dibble & Co., 13 Bush, 298; Commonwealth, for Use, etc. v. Williams, etc., 14 Bush, 297; American Insurance Co. of N.Y. v. Austin, 37 S.W. 678, 18 Ky. Law Rep. 632; Green v. Culver, 39 S.W. 426, 19 Ky. Law Rep. 186.

It is apparent from the evidence that the appellant, Mike Hatfield, was not a regular employé of appellee, but he worked for him as a carrier of papers at times, covering a period of three or more months, in the place of Leon Marion, a regular carrier, who was so ill for a while as to be unable to perform his duties. Appellant's name was never on appellee's books as a carrier, though he was paid by the latter for such work as he did. Appellant testified that he was in appellee's employ when hurt, but appellee, Goodman, the foreman, of his printing department, and Pendleton in charge of the carrier department, say he was not.

It was also claimed by appellant that when injured he was undertaking to remove papers and clippings from the folding machine by direction of Pendleton. Pendleton not only testified that he gave him no such direction, but also that he did not in fact know appellant was at the folding machine until he heard him cry out when hurt. Goodman, who was only a few feet...