Houston Stanwood & Gamble Co. v. Schneider

• Decision Date: 31 May 1912
• Citation: 147 S.W. 371,148 Ky. 651
• Parties: HOUSTON, STANWOOD & GAMBLE CO. v. SCHNEIDER.
• Court: Kentucky Court of Appeals

147 S.W. 371

148 Ky. 651

HOUSTON, STANWOOD & GAMBLE CO. v. SCHNEIDER.

Court of Appeals of Kentucky.

May 31, 1912

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Karl H. Schneider against the Houston, Stanwood & Gamble Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Robert C. Simmons, of Covington, and Morison R. Waite, John R Schindel, and Carl Phares, all of Cincinnati, Ohio, for appellant.

B. F Graziani, of Covington, for appellee.

MILLER J.

By this appeal, the Houston, Stanwood & Gamble Company asks the reversal of a judgment obtained against it by the appellee Schneider for $1,000 damages for personal injuries. Schneider was employed as a boiler maker by the appellant in its shops at Covington, as a handy man between a general laborer and a skilled journeyman. In manufacturing boilers, appellant required large sheets of iron, which composed the sections of a boiler, and known as "belly sheets," to be carried from one portion of the shop to another, where the boiler was under construction. These belly sheets or plates were from four to six feet wide, and from six to eight feet in length, and quite heavy; and, in carrying them from one position to another, the appellant used an electric crane which ran overhead, with two chains hanging down, with iron hooks, about seven inches in length, attached to the lower ends. These hooks were fastened to the clamps on the plates or belly sheets, and then, at a signal to the operator of the crane, the plates were carried to the place where the boiler was under construction, about 50 feet away. This crane had previously been used by other employés in lifting heavy boilers and engines of great weight; and by reason of that use one of the iron hooks attached to the chain had been flattened or straightened out to such an extent as to render it defective.

A few days before the accident, the hook had dropped some material it was carrying, but had injured no one. On the day before the injury, Schneider informed Evans, his foreman, of the dangerous condition of the hook; but the foreman told Schneider they were in a hurry to complete the boiler then under construction, and to go ahead and use the hook, and they would fix it when they had time; *** that they were in a hurry for the work. On the next day, they were using the crane in the usual way for carrying one of these large plates though mid-air to the uncompleted boiler. Appellee had attached the hooks to the plate, and had then proceeded ahead, and was standing in the boiler form ready to put the sheet in place when it arrived; but when it was carried to a position immediately over the head of appellee, and he was about to receive it, the hook let loose its hold on the plate; whereupon it fell, striking appellee on the skull and causing the injuries complained of. As there is no complaint that the amount of the verdict is excessive, it is unnecessary to go minutely into the character of the injuries.

It is first contended that Schneider is not entitled to recover, because he negligently contributed to his injury. That question, however, was expressly and correctly submitted to the jury by the second instruction, wherein the jury was told that, if it should believe from the evidence that at the time and place of the accident Schneider was himself negligent, and that, but for such negligence contributing thereto, the accident would not have happened, and his injuries would not have been suffered, it should find for the defendant.

It is next insisted that the foreman's promise to fix the hook, if made, did not relieve Schneider of the duty to protect himself against the defect; and that the promise to repair cannot be relied upon, because Schneider was not compelled to use the hook in the way he did, but could have used it in a different way, which was safe. In other words, it is contended that when there are two ways in which an instrument can be used, one being a safe way and the other a dangerous way, and both known to the operator, his choosing to use the instrument in an unsafe way is such an act of negligence upon his part as will preclude him from recovering for the injury. The rule relied upon was stated by this court as follows, in Hutchison v. Cohankus Mfg. Co., 112 S.W. 902: "The rule is well settled that, where there are two ways in which a servant may perform his duties, one of which is dangerous and the other not, and he voluntarily chooses the more hazardous method, knowing it to be such, he does so at his own risk. 26 Cyc. 1189. Appellant could have waited until the machine stopped before attempting to remove the cotton. Instead of doing that, he voluntarily chose the more hazardous method of placing his hand in the machine while it was running. He did this at his own risk, and cannot, therefore, recover."

It will be readily seen, however, that the rule is not applicable to the facts of this case, since it necessarily implies a knowledge of the two different ways upon the part of the servant, and a voluntary choice of the dangerous method on his part. In the case at bar, Schneider had never used the hook in any different manner, and says he never had been instructed to use it differently; and these facts, connected with the promise of appellant to repair the hook, bring the case within the rule applicable to a servant's right to continue in the service after the promise to repair has been made. That rule is stated as follows in 26 Cyc. 1209: "Where the master, or some one acting in his place, promises to remedy the defect complained of, the servant, by continuing in his employment for a reasonable time after such promise, does not assume the risk of injury from the defect, unless the danger was so patent that no person of ordinary prudence would have continued to work."

In Louisville Hotel Co. v. Kaltenbrun, 80 S.W. 1163, 26 Ky. Law Rep. 209, we considered this rule and its limitations at some length, and in the course of the opinion used this language: "We do not understand the rule to be that the servant, after obtaining knowledge of the danger and complaining of it to his employer, is precluded from continuing his service, if the employer promises to repair, unless the danger is so imminent and manifest that no prudent person would be justified in taking the risk of the continued service."

And, in applying the rule to the facts of that case, we there further said: "We cannot agree to the proposition that the danger in walking on the slippery floor was so apparent and imminent that none but an utterly reckless person would have used it under the circumstances. The other employés in the laundry were walking on it at the same time, and did not fall. It was not at all probable that, if appellee fell, he would receive such terrible injury as happened to him on this occasion. This is not like the Sullivan Case, where the employé was working on a narrow plank over a deep and rapid river, where to fall meant almost certain death; or that of the servant who uses a ladder, without nails in the end, on ice, where it was almost certain that the ladder would slip when used, and equally certain that the fall would inflict serious injury, if not death, when it took place. At any rate, this, as was said in Hough v. Railway [100 U.S. 213, 25 L.Ed. 612], was a question for the determination of the jury. It is believed that the foregoing principles are sustained by Breckenridge Co. v. Hicks, 94 Ky. 362 [22 S.W. 554, 15 Ky. Law Rep. 143, 42 Am. St. Rep. 361], Bell & Coggeshall Co. v. Applegate , 23 Ky. Law Rep. 470, and Reiser v. Southwestern Planing Mill & Lumber Co. [114 Ky. 1, 69 S.W. 1085], 24 Ky. Law Rep. 796."

In Long's Adm'r v. I. C. R. Co., 113 Ky. 811, 68 S.W. 1096, 24 Ky. Law Rep. 569, 58 L. R. A. 237, 101 Am. St Rep. 374, we reannounced the rule in the following terms: ...