E.J. O'Brien & Co. v. Shelton's Adm'r

• Decision Date: 16 December 1932
• Citation: 246 Ky. 537,55 S.W.2d 352
• Parties: E. J. O'BRIEN & CO. v. SHELTON'S ADM'R.
• Court: Kentucky Court of Appeals

55 S.W.2d 352

246 Ky. 537

E. J. O'BRIEN & CO. v. SHELTON'S ADM'R.

Court of Appeals of Kentucky

December 16, 1932

Appeal from Circuit Court, Marshall County.

Suit by Vodrey Shelton's Administrator against the E. J O'Brien & Co. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

W. A Berry, of Paducah, for appellant.

Seth T. Boaz and Gardner & McDonald, all of Mayfield, for appellee.

REES J.

The appellant is a firm engaged in the business of buying, selling, and rehandling tobacco in Kentucky and other states. It owned a tobacco warehouse at Benton, Ky. which it desired to dismantle and ship to Wilson, N. C., where it intended to use the materials in the construction of a building. Some time in April, 1930, E. J. O'Brien, Jr., a member of the firm, called R. F. Pryor by telephone at Mayfield, Ky. and directed him to employ a force of men, take them to Benton, dismantle the building, and load it on cars for shipment to North Carolina. Pryor was a member of the firm of J. L. Sherrill & Co., of Mayfield, which was engaged in the business of buying and rehandling tobacco at that point as the agent of appellant. Pryor was informed that O'Brien & Co., had elected to do the work under the compensation laws of Kentucky, and he was instructed to have the men employed by him to sign the compensation register.

Pryor employed about thirty laborers, among whom were a number of the employees of Sherrill & Co., and informed them of the nature of the work they were to do. He sent the men to Benton on a truck and he followed in an automobile accompanied by two of Sherrill & Co.'s foremen whom he took along to assist him in superintending the work. Before the work of dismantling the building was commenced, he presented to the workmen a register which all of them signed. It later developed that the appellant had failed to qualify under the Workmen's Compensation Act (Ky. St. § 4880 et seq.). After their arrival at the warehouse in Benton, the workmen were divided into groups and assigned to different parts of the building with instructions to tear it down. The warehouse was a building about 300 feet in length by 160 feet in width and 30 feet in height on one side and 20 feet in height on the other. It was constructed of wood framing and the sides were covered with sheet, or corrugated iron, in sections about 10 feet long which were nailed to the framing. It is conceded that no inspection of the building was made before the work of dismantling was commenced.

Vodrey Shelton, one of the workmen, was given a crowbar and directed to tear off the iron sheeting and hand it down to men on the outside to be piled on the ground. Shelton had been employed for many years by Sherrill & Co., but had worked occasionally as a carpenter. In performing the work he was directed to do it was necessary for Shelton to climb up on the framing on the inside of the building and knock off the iron sheeting with a crowbar. While he was sitting astride a brace about 25 feet from the ground engaged in the work that had been assigned to him, the brace gave way and he was thrown to the ground. He received fatal injuries and died two days later. He had been engaged in the work about two hours when the accident occurred.

The First National Bank of Mayfield qualified as administrator of Shelton's estate, and, on March 28, 1931, brought this suit against E. J. O'Brien & Co., to recover the sum of $15,000 for the death of its decedent. On the trial the case was submitted to the jury under an instruction which told them that it was the duty of the defendant to use ordinary care to furnish a reasonably safe place for the decedent, Vodrey Shelton, to do the work assigned to him, and that, if they should believe from all the evidence that the defendant failed to use such care and that by reason thereof the building, or any part of it, at the place where decedent was working was not a reasonably safe place for him to work, and that the unsafe condition, if it was unsafe, was known to the defendant, or could have been known to it by the exercise of ordinary care, and that decedent's injury was brought about by reason of the unsafe condition of the building where he was working, they should find for the plaintiff. The jury returned a verdict for the plaintiff for the sum of $10,000, and from the judgment entered thereon this appeal is prosecuted.

It is appellant's contention that the court erred in refusing to sustain its motion for a peremptory instruction offered at the conclusion of the plaintiff's evidence. It is also insisted that the instruction given by the court, even if the case should have been submitted to the jury, is erroneous.

A number of witnesses, including carpenters and contractors experienced in the work of dismantling buildings, testified that the proper, usual, and customary method of tearing down a building, such as the one here involved, is to erect scaffolding to enable the workmen to perform the work with greater safety. Appellant's contention that its motion for a peremptory instruction should have been sustained is based on the doctrine that the safe place rule does not apply where the work is necessarily hazardous and conditions are constantly changing during the progress of the work.

In Ballard & Ballard Company v. Lee's Administrator, 131 Ky. 412, 115 S.W. 732, 735, Lee was one of the workmen employed by Ballard & Ballard Company to remove the roof from a building preparatory to enlarging the building. While engaged in this work, Lee fell through the roof to the ground and was killed. It was held that an experienced employee who undertakes the work of wrecking a building, which is necessarily dangerous, assumes the ordinary risk incident to the employment and that the master is not bound to exercise ordinary care to discover the danger. In the course of the opinion it was said: "The duty of the master in reference to safe places and premises cannot, in the very nature of things, have any application to employments like this, and hence the rules regulating and controlling the liability of the master in this particular have no place."

In Standard Oil Company of Kentucky v. Watson, 154 Ky. 550, 157 S.W. 929, a workman, while engaged in tearing down a building, was injured under circumstances very similar to those of the instant case, and it was held that a master engaged in the hazardous business of tearing down old buildings is not required to exercise even ordinary care to discover dangerous defects. In Dyer v. Pauley Jail Building Company, 144 Ky. 592, 139 S.W. 789, 790, a workman engaged in tearing down an old jail was injured by being struck by a strip of iron sheeting which fell when the rivets holding it in place were cut. In affirming a judgment for the master, it was said: "It was impossible for the appellee to furnish him a safe place to work, for the very work that was being undertaken rendered the place unsafe. Appellant must have known, and did know, that when the bolts were cut and the rivets driven from their places the pieces of sheet iron were liable to and naturally would fall." In none of these cases was it claimed that the work was not being done in the usual and customary way employed by reasonably prudent men engaged in similar work.

The rule announced in these and similar cases that a person engaged in the dismantling of a building is not bound to furnish his workmen with a safe place to work is a generally recognized principle, but it does not follow that the master is absolved from all duties to his employees. The work of dismantling a building is necessarily hazardous and the conditions are constantly changing as the work progresses which precludes the master from always anticipating the dangers as they arise. While the master cannot be held liable for failing to furnish a safe place, when the place itself is being demolished or repaired, yet if he adopts a method for doing the work which...