Interstate Coal Co. v. Deaton

• Decision Date: 02 May 1912
• Citation: Interstate Coal Co. v. Deaton, 148 Ky. 160, 146 S.W. 396 (Ky. Ct. App. 1912)
• Parties: INTERSTATE COAL CO. v. DEATON.
• Court: Kentucky Court of Appeals

146 S.W. 396

148 Ky. 160

INTERSTATE COAL CO. v. DEATON.

Court of Appeals of Kentucky.

May 2, 1912

Appeal from Circuit Court, Knox County.

Action by Ben Deaton, by his next friend, Dan Deaton, against the Interstate Coal Company.From a judgment for plaintiffdefendant appeals.Reversed and remanded.

P. D Black, James D. Black, Benjamin B. Golden, and Hiram H Owens, all of Barbourville, for appellant.

Powers Sampson & Smith and J. M. Robsion, all of Barbourville, for appellee.

CLAY C.

Ben Deaton, a young man 17 years of age, while driving a wagon loaded with baled hay through the door of a barn belonging to appellant, Interstate Coal Company, was struck and severely injured.Suing by his next friend, Dan Deaton, he brought this action to recover damages.A trial before a jury resulted in a verdict and judgment in his favor for $995.The coal company appeals.

Appellee bases his right to recover on appellant's failure to furnish him a reasonably safe place in which to work; also on the fact that he was an infant, and appellant failed to warn him of the danger, and upon the further ground that he was ordered by one superior in authority to drive the wagon into the barn, and the danger was not so apparent that an ordinarily prudent person of his age and experience would not have attempted to do so.

The injury occurred under the following circumstances: Appellant owns and operates a coal mine at Cumberland, Knox county, Ky.In connection therewith, it has two barns, wherein it keeps mules and horses, and stores hay, corn, and other feed stuff.The barn at which appellee was injured was a frame structure several feet long, with a hallway 8 or 10 feet wide running through the center, and stalls on each side, with doors opening from the hallway into each stall.On each side, and above the stalls, were lofts, wherein to store hay.Still higher up, and over the hallway, was another loft.The door to the barn was about 8 or 10 feet wide, and about 11 or 12 feet high.The frame of the building extended around the door, and the planks were nailed thereto.Above the door was a cross timber, to which the planks from above were nailed, and against which the door closed.This cross timber was about on a level with the floor of the loft above the hallway, and was about 10 feet from the ground.At the bottom of the door was a sill, which was a part of the door frame and the building, and against which the door rested when closed.A portion of this still was placed in the ground; and a portion of it projected above.The sill was placed in that position when the door was erected.There was a depression just outside, and immediately in front of the door, and, in order to get into the barn with wagons, a fill of dirt and cinders had been made, which gradually slanted up to the sill.According to some of the witnesses, this fill was about even with the sill; while others testify that the sill projected from 1 to 4 inches above the fill.When injured, appellee was driving a wagon on which were loaded 20 bales of hay.These bales were each about 3 1/2 feet long, 2 feet wide, and 1 1/2 feet thick, and weighed from 85 to 120 pounds.The wagon bed on which the bales were piled was 3 feet wide and 10 feet long.The bottom layer consisted of 6 bales, laid lengthwise on the wagon bed.The second layer contained 5 bales, the third layer 4 bales, the fourth layer 3 bales, and the fifth, or top, layer 2 bales.The last four tiers were placed crosswise.As the number of bales decreased towards the top, each layer of bales was placed so that it was about one foot shorter than the tier of bales upon which it rested.In other words, the bales were arranged like stair steps.Appellee was seated upon the layer that contained 3 bales; that is, the fourth layer.His feet rested upon the projecting bale thereunder, and directly behind him was the fifth layer, containing 2 bales.

Appellee went to work for appellant about 11 days prior to the injury.He was employed by appellant's foreman, John Bassett.He worked under Bassett until the afternoon of February 26 1909.At that time, Bassett told appellee that he(Bassett) was going away, and for appellee to report to the stable boss, Bob Kenoa, on the next morning, and Kenoa would tell him what to do.On the next morning, after he reported to Kenoa, he was directed by the latter to harness his mules and haul some brick for the company, and hauled three wagon loads of brick before noon.In the afternoon, he was directed by Kenoa to get his wagon and haul some hay from the depot to some barns about 150 yards distant.Kenoa was present, and directed how the hay should be loaded into the wagon at the depot.Two wagon loads were hauled to one of appellant's barns near the station.The third load was hauled to the barn at which the injury occurred.Kenoa reached the barn before appellee arrived with his wagon.When appellee got within about 10 or 12 feet of the barn, he said to Kenoa: "Are you going to drive up here by the side and unload this hay off?"Kenoa said, "No," and then walked in the hallway, where there was a wheelbarrow.Kenoa put the wheelbarrow in one of the stalls, and told appellee to drive in.Appellee said to Kenoa: "That is too narrow; I can't get in there with this load up high."Kenoa said: "Yes, you can; drive on in."At that time, Kenoa was standing about the middle of the barn, and could see appellee, who was seated on the fourth tier of bales.When Kenoa told appellee to drive in, appellee caught up his lines and spoke to his mules.As he started through the door, he saw the crosspiece, and bowed his head low enough to miss it.After getting his head under the crosspiece, he felt the wheels rise up as they struck the sill, which was three or four inches above the ground outside.He was caught between the hay and the crossbeam, and his back wrenched...