Keen's Adm'r v. Keystone Crescent Lumber Co.

• Decision Date: 27 April 1909
• Citation: 118 S.W. 355
• Parties: KEEN'S ADM'R v. KEYSTONE CRESCENT LUMBER CO.
• Court: Kentucky Court of Appeals

118 S.W. 355

KEEN'S ADM'R v. KEYSTONE CRESCENT LUMBER CO.

Court of Appeals of Kentucky.

April 27, 1909

Appeal from Circuit Court, Pike County.

"Not to be officially reported."

Death action by Shade Keen's administrator against the Keystone Crescent Lumber Company. There was a directed verdict for defendant, and plaintiff appeals. Reversed and remanded.

N. J Auxier and A. E. Auxier, for appellant.

NUNN J.

This action was instituted in the Pike circuit court September 14 1907, seeking to recover $2,000 in damages for the death of Shade Keen, which was caused by the explosion of a steam boiler in a sawmill operated by appellee company, and in which Keen was working at the time as fireman. At the conclusion of all the testimony the court gave a peremptory instruction to the jury to find for appellee.

It is shown by the pleadings and proof: That Keen had a very short experience in working about a sawmill, and had been firing only seven or eight days; that he was unacquainted with machinery; also, that the boiler which exploded had been in use over 20 years; that the dome on the boiler was cracked and had been for a month or two before the explosion; that the "stay bolts" within the dome stood upright and were fastened below and in the top of the dome to hold it that for some cause they had decayed and were nearly severed possibly by rust, at the time the explosion occurred. Appellee, by its answer, admitted that Shade Keen was its servant at the time he was killed, that there was a crack in the dome of the boiler, and that the steam escaped therefrom, but denied that the stay bolts were defective, and alleged that Keen knew of the escape of the steam through the crack in the dome, and that he took the risk of the dangers incident thereto. Appellant, by reply, admitted that Keen knew of the escape of the steam and of the crack in the dome, but alleged that he did not know of the dangers he was subject to in working about it, that he was assured by appellee's superintendent within two or three minutes before the explosion that there was no danger of an explosion and that it was safe for him to work at that place, and, relying upon this assurance, he continued his labor. The testimony of each party authorized all these allegations.

On August 24, 1908, appellee filed an amended answer withdrawing its original allegation and admission concerning the employment of Keen, and alleged that he was the employé of one Thacker and not its servant, that Thacker was an independent contractor operating the mill for himself, that appellee had no control over Keen, and that Thacker controlled him. These allegations were controverted, by agreement, of record. The facts with reference to this matter were, in substance, these: Appellee was the owner of a number of standing trees on a certain creek in Pike county and employed a lot of men to cut the trees and haul the logs to a certain point on the creek where it had established a mill to saw them into lumber of the kind and character fixed in bills furnished by it to the manager or sawyer. One Barcus had been superintendent of this lumber camp, but for some reason left. Then it was appellee employed Thacker and his mill and a fireman for the price of $100 per month, and made Thacker superintendent of the camp. Thacker was introduced by appellant as a witness, and he testified as follows: "I was to have $100 a month for my mill and fireman, and I was to have pay for what work I did. They were to bear the expenses, keep up repairs of the mill. They put me in as foreman at the mill. They paid me $3 per day for this." He also testified that he employed one Dick Syck as fireman, that he performed this labor for some time, but during the latter part of the work he did some of the sawing for which he received $1.50 a day, until upon his (Syck's) complaint his wages were raised, and he did most of the sawing. Keen was employed by the foreman, Thacker, to work at the "skidway," and, when Syck was running the saw, Keen was sent from the skidway to do the firing,...