Iseman v. Hayes

• Decision Date: 05 February 1932
• Citation: 242 Ky. 302,46 S.W.2d 110
• Parties: ISEMAN v. HAYES.
• Court: Kentucky Court of Appeals

46 S.W.2d 110

242 Ky. 302

ISEMAN v. HAYES.

Court of Appeals of Kentucky

February 5, 1932

Appeal from Circuit Court, McCracken County.

Action by Mrs. Alice Hayes against Mrs. A. L. Iseman. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

W. A Berry and Ben S. Adams, both of Paducah, for appellant.

C. C Grassham and Roy Garrison, both of Paducah, for appellee.

PERRY J.

On July 26, 1930, appellee, Mrs. Alice Hayes, instituted this action in the McCracken circuit court to recover of appellant, Mrs A. L. Iseman, damages for injuries received by her in falling from a stepladder, upon which she was standing while engaged on April 10, 1930, in washing the paint on bathroom walls and door of appellant's home, upon which work she was at the time employed by appellant.

Appellee in her petition, alleges that, while thus employed by appellant upon said housework, "she was directed by appellant to wash the paints of the bathroom wall and door, and that in order to do said work, she was required by the appellant to use and stand upon her stepladder to reach certain parts of the walls and door; and while engaged in washing the paints inside the door and while standing upon said stepladder, holding to the door with her left hand, in order to prevent said stepladder from tipping or turning with her, the defendant, Mrs. A. L. (Amanda) Iseman, agreed and undertook to hold the stepladder while she was thereon, as it was known to the defendant, the owner of the ladder, that it was unsafe, and insecure for use as such by any person climbing or being thereon, unless it was so held by another."

The plaintiff further alleges that she was unwilling and refused to go upon said ladder and make such use thereof without appellant's agreeing to hold same for her; that appellant had held it for her during the washing of the walls of the bathroom; and further alleges, that while she was upon the ladder and her hand on the door to steady herself, that the defendant, without previous notice, turned the ladder loose, and left her unsupported except by her hold upon the door, and that before plaintiff had time or opportunity to remove herself from the ladder, and immediately upon the defendant's act of withdrawing her aid in steadying same, that the ladder turned, "throwing the weight of plaintiff and ladder against the door, closing the door upon her fingers of left hand and precipitating her to the floor, with her entire weight upon the imprisoned fingers of her left hand; that her left hand was thereby badly mangled, its index finger crushed and middle finger torn from hand and the entire use of hand thereby destroyed, causing plaintiff much physical pain and mental anguish, permanent injury and loss of time by reason thereof"; all of which were caused, it is alleged, by the negligence of the defendant, and of which "it was the direct result of the defendant doing and failing to do the things aforesaid, but for which her injuries would not have occurred, and because of which she has been damaged in the sum of $5,150," for which she prays judgment, together with costs and all other relief.

Appellant demurred to the petition, and also filed answer thereto, controverting all its averments, and by separate paragraphs pleaded contributory negligence and assumed risk.

Appellee filed demurrer to the plea of assumed risk, and also her reply denying all affirmative averments of the answer.

Counsel for appellant, each in separate briefs, present and very strongly argue some eight points as grounds for reversal; only three of which we deem it needful to now consider and dispose of.

These are, first, that there was no negligence shown and the court erred to the prejudice of the appellant in refusing to give the jury peremptory instruction A, directing verdict for appellant, moved for at the close of appellee's evidence, and again at the conclusion of all the evidence; second, that the verdict is flagrantly against the evidence; and, third, that instruction No. 2 is prejudicial to the appellant, because it did not properly submit to the jury the measure of damages, and by this instruction certain material facts were assumed, and left to the jury a question of speculation.

With reference to the first contention of appellant, that the court erred in not sustaining her motion for a directed verdict, our disposition of this involves an analysis of appellee's evidence, upon which the argument is based, that no negligence was shown thereby.

Appellee testified that she is an old woman of some seventy-four years of age and had for some years been employed by appellant in her home for general housework; that the accident in question, whereby she was injured, occurred on April 10, 1930, at which time she was employed by the appellant, in helping her to wash the bathroom walls and door of her home, when appellant did the low work and she the high work around the walls and ceilings, and in which washing they used appellant's dilapidated stepladder, which was defective in "its one side being shorter than the other"; further, she states that when, in the course of this washing work, appellant and she came around to the door of the bathroom, appellant was standing behind her and had hold of the ladder, while appellee had hold of the door with her left hand and was washing the transom with the other, and when appellee "had gotten it washed and had one foot on the ladder and the other fixing to step on the floor, Mrs. Wilkins came in the house and hollered and Mrs. Iseman said, 'I will see what she wants', and turned loose of the ladder and went out and that let the ladder turn with me and threw me against the door"; she testifies further that she thereby caught her hand in the door; "that she pulled her hand out and her forefinger was mashed flat and cut across and the middle finger was cut clear off, hanging down by a little piece of skin, and she now has no movement in her hand and fingers are stiff."

She states that no one else was up there in the bathroom at the time of the accident but Mrs. Iseman and her, and that later when she showed Mrs. Iseman her injured hand, Mrs. Iseman screamed and, "went right up in the air." Mary (Mrs. Ware) and Mrs. Wilkins came up the steps and grabbed her and she told them to "call my boy," and that Dr. Reddick, too, was called, and they both came.

Upon cross-examination, she denied that she made any statements either to appellant or Dr. Reddick, or any of appellant's witnesses, whereby she admitted that the accident was due to her fault, and that appellant had warned her at the time to stay off the ladder.

Appellee's three other witnesses who were introduced, namely, Charles Hayes, her adopted son, Dr. H. H. Duley, and Mrs. C. B. Hunt, testified only as to the appellee's suffering caused by her injury, Dr. Duley stating that her hand was permanently injured; but no one of them was present at the time of the accident nor undertook to testify as to the cause or circumstances under which it occurred.

By appellee's testimony, thus given in her own behalf upon the trial, her evidence is that both the appellant and she knew the appellant's stepladder was defective and dangerous, when used for standing thereon while washing high places upon walls, unless it was supported and made steady by another's holding it at such time. Also it appears from her testimony that appellee was at the time of so using the stepladder under the direction ofappellant, her employer, who, by holding it, undertook to make it safe for appellee to stand upon while doing the door washing work as directed by her.

She further states that the appellant, though knowing the situation and having undertaken to provide her a safe tool with which to do the work of washing the walls, by holding the ladder steady for appellee, did, in violation of her duty, owing appellee under such circumstances, to hold the ladder steady for her while standing upon it, and engaged in doing appellant's work, none the less, without giving appellee any notice of her intention to withdraw her support from the ladder, negligently released her hold upon it while appellee was thereon with the result, as it was reasonable, and under the stated circumstances to have been anticipated by appellant, that the ladder turned and fell, and appellee with it, directly causing her the hurt and injury complained of.

By appellee's testimony, there was thus presented evidence that appellant's release of the ladder, under the circumstances mentioned, was a breach of duty which she owed plaintiff and which would render her responsible for the injury resulting from this, her negligent act. This evidence was thus sufficient to disclose the existence of a duty, owing, under the conditions related, by appellant to appellee to hold the ladder upon which appellee had gone, while she remained thereon at work, and it sufficiently appeared by plaintiff's testimony that appellant violated this duty by withdrawing, without notice given the appellee, her hold or support from the ladder, and that appellee was damaged by reason thereof. Appellee's testimony thus evidenced a direct act of negligence by appellant, by which appellee's injury was caused and directly resulted therefrom.

Appellant contends that she was entitled to a peremptory instruction upon the conclusion of this evidence; but the rule is, that if plaintiff introduces any evidence of substance and having the quality of proof, which tends to sustain his case, the question should be submitted to the jury; the decision of every issue of fact being for the jury. Sydnor v Arnold, 122 Ky. 557, 92 S.W. 289, 28 Ky. Law Rep. 1250; Chesapeake & O. R. Co. v. Conley, 136 Ky. 601, 124 S.W. 861. Further, the rule is that a...