Illinois Cent. R. Co. v. Langan

• Decision Date: 29 September 1903
• Parties: ILLINOIS CENT. R. CO. v. LANGAN.
• Court: Kentucky Court of Appeals

76 S.W. 32

116 Ky. 318

ILLINOIS CENT. R. CO. v. LANGAN.

Court of Appeals of Kentucky.

September 29, 1903

Appeal from Circuit Court, Jefferson County, Third Division.

"To be officially reported."

Action by Thomas J. Langan against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Pirtle & Trabue and J. M. Dickinson, for appellant.

Matt O'Doherty, for appellee.

O'REAR J.

Appellee was a freight handler at appellant's depot in Louisville. Freight was handled by gangs of four men. When more were needed, additional ones were detached from one gang and added to the other. Appellee and three others were called upon to move steel shafts, weighing from 200 to 460 pounds, from the cars to the freight platform. They were under the direction of a freight clerk. The gang, including appellee, had moved several shafts, weighing about 200 pounds, and requested the freight clerk to obtain assistance for the removal of the larger shafts, which weighed 460 pounds each. They stated to him that they could not in safety or that it would be dangerous for them to attempt to move these larger shafts which were about 20 feet long, and from 4 to 6 inches in diameter, were round, and had been oiled or greased, making it difficult for them to be handled. The freight clerk having failed to get the additional men after an apparent effort, exclaimed to appellee and the others of his gang "O, go on!" or something to that effect. In attempting the handling of one of these larger shafts it slipped or was dropped from the hands of the carriers, and fell on appellee's foot, severely injuring it.

This suit for resulting damages was based upon the neglect of appellant in failing to provide a sufficient number of workmen to assist appellee in this work. The instruction of the court upon this point was that it was the duty of the defendant, the railroad company, to furnish a sufficient number of hands to handle in a reasonably safe manner the shafting which injured appellee, and that if it failed to do so, and knew, or by the exercise of ordinary care could have known, that the force furnished for the handling of the shafting in a reasonably safe manner was insufficient, and the same was not known by appellee, and could not have been known by him in the exercise of ordinary care, and that appellee did not have equal means of knowing the same with appellant, or its agents superior in authority to him, and that appellee was injured by such failure of appellant, then the law was for the appellee. For the appellant it is objected that this instruction was erroneous, in that it failed to tell the jury that they could find for the injured servant only in the event that his superior, through gross negligence, failed to provide a sufficient number of men to assist in doing the work. I. C. R. Co. v. Coleman (Ky.) 59 S.W. 13.

There are certain risks which a laborer assumes as an incident of his employment. Among these is that of the ordinary negligence of his fellow servants. Although each servant in the common employment is a representative of the master to the extent that he is acting within the scope of his duties yet for many kinds of ordinary neglect towards his fellow...