Husk's Adm'r v. F.T. Gunther Grocery Co.

• Decision Date: 07 May 1913
• Citation: 156 S.W. 120,153 Ky. 595
• Parties: HUSK'S ADM'R v. F. T. GUNTHER GROCERY CO.
• Court: Kentucky Court of Appeals

156 S.W. 120

153 Ky. 595

HUSK'S ADM'R v. F. T. GUNTHER GROCERY CO.

Court of Appeals of Kentucky.

May 7, 1913

Appeal from Circuit Court, Daviess County.

Action by William W. Husk's administrator against the F. T Gunther Grocery Company. From a judgment for defendant on a directed verdict, plaintiff appeals. Affirmed.

George W. Jolly, of Owensboro, for appellant.

R. A Miller and Frank C. Malin, both of Owensboro, for appellee.

HOBSON C.J.

William W. Husk was in the employment of the F. T. Gunther Grocery Company at Owensboro as the driver of a wagon. He stuck a nail in his foot; the injury resulting in lockjaw, from which he died. This suit was brought by his administrator against the Grocery Company to recover for his death. The allegations of the petition were traversed by an answer. The case coming on for trial before a jury, the court, at the conclusion of the evidence for the plaintiff, instructed the jury peremptorily to find for the defendant, and, the plaintiff's petition being dismissed, he appeals.

The proof on the trial showed these facts: Husk had begun working for the defendant on the day he was injured. The defendant had rented from the Griffith Elevator Company the use of part of a stable situated back of the elevator; the Elevator Company using a part of the stable and the Grocery Company using a part, both using a water trough on the lot, and both using the vacant lot to stand their wagons on when not in use. There was a low place on the lot between the water trough and the stable door, which got muddy in wet weather and some one had thrown into this place some loose pieces of plank to walk on and keep out of the mud. There were some nails sticking in these planks, which had been there three or four days, but who put them there does not appear. The Grocery Company had no control of the lot. It only had the use of it above stated. There was also a pile of like rubbish plank on the lot not very far from the point where Husk unhitched the horses. The only testimony as to how Husk was injured is from the witness Bob Hicks, who testified as follows: "I was working for them on June 24, 1911 the day he was hurt. I was in the stable; I did not see him, though. He came to the stable and told me he stuck a nail in his foot. I was in the stable feeding. He unhitched the horses and turned them loose, and they went to the trough to get water, and the horses returned and came in the...