Kelly & Shields v. Miller

• Decision Date: 19 December 1930
• Parties: KELLY & SHIELDS v. MILLER.
• Court: Kentucky Court of Appeals

33 S.W.2d 662

236 Ky. 698

KELLY & SHIELDS v. MILLER.

Court of Appeals of Kentucky

December 19, 1930

Appeal from Circuit Court; Perry County.

Action by Jerry Miller against Kelly & Shields. From a judgment for plaintiff, defendants appeal.

Affirmed.

George E. Saufley and Craft & Stanfill, all of Hazard, for appellants.

Roy Helm and C. W. Napier, both of Hazard, for appellee.

REES J.

Appellants J. S. Kelly and P. R. Shields, partners, doing business under the firm name of Kelly & Shields, as subcontractors were engaged during the month of May, 1928, in the placing of asphalt on the concrete base of a highway constructed under the supervision of the state highway commission in Perry county. Part of the road was within the corporate limits of the city of Hazard.

On May 30, 1928, the appellee, Jerry Miller, who was employed by the appellants as a laborer, and who, with a number of other men was engaged in spreading asphalt which had been dumped in piles on the concrete, was struck by an automobile owned by the Baker Grocery Company, and which was driven by Guy Jennings, an employee of the grocery company. Appellants were employing the requisite number of men to bring them within the provisions of the Workmen's Compensation Act, but they had not elected to operate under that act, and consequently the common-law defenses of assumed risk negligence of fellow servant, and contributory negligence of the injured party were not available to them. Kentucky Statutes, § 4960; West Kentucky Coal Co. v. Shoulders' Adm'r, 234 Ky. 427, 28 S.W.2d 479. The accident, which resulted in serious injuries to appellee, occurred on a curve of the road and within the corporate limits of the city of Hazard. Appellee was working on the right side of the road going north and at a point where the road curved to the right. The automobile driven by Jennings was traveling north. Appellee brought this action against the appellants in the Perry circuit court to recover the sum of $20,512.50, of which $512.50 was for medical and hospital bills incurred by him and loss of time. He recovered a judgment for $3,512.50.

On this appeal the appellants rely upon the following grounds for a reversal of the judgment: (1) There was no evidence tending to show any negligence on the part of the appellants, and they were entitled to a directed verdict in their favor; (2) the petition was defective, and the demurrer thereto should have been sustained; (3) the instructions are erroneous; and (4) the verdict is excessive.

It was appellee's theory that the appellants failed to furnish him a reasonably safe place in which to work, and it is argued in appellants' behalf that there is no evidence tending to show they were guilty of any negligence in this respect. The concrete highway upon which the asphalt was being spread was not closed, but was being used by a large number of automobiles. Vehicles traveling on the highway were supposed to leave the concrete at the point where the men were spreading the asphalt and where the asphalt was piled on the road and proceed around that section of the concrete. At the time he was injured, appellee was working on the inside of the curve of the road, and was facing north. A number of witnesses were introduced by the appellee who testified that appellants had placed no signs or flags south of the place where their men were working notifying the traveling public that the road was under construction and men were working ahead. Jennings, the driver of the truck, testified there were no such signs as he approached the curve going north, and that, when he saw the piles of asphalt and the appellee, he was within a few feet of the latter and unable to bring his car to a stop before striking him. He admitted that he saw two boys in the road a short distance south of Miller waving brooms, but he thought they wanted to ride, and did not check the speed of his truck. It is admitted that these two boys, who were sweeping the concrete ahead of the workmen who were spreading the asphalt, had been instructed by the foreman in charge of the work to stop all automobiles and warn the drivers of the conditions ahead. According to some of the witnesses, these boys at the time of the accident were 15 or 20 feet south of Miller, and according to others they were as much as 75 or 80 feet away. Appellants insist that the evidence conclusively shows there was a red flag and also a large sign warning the traveling public of the conditions ahead on the road several hundred feet south of the scene of the accident, and that there was no evidence to the contrary, and that therefore appellants had used reasonable precautions to render safe the place where appellee was working. However, the appellee, Evert Bentley, Lodell Caudill, Wane Sizemore, and Guy Jennings testified positively that there were no flags or signs south of the point where the men were working. Two or three witnesses testified as to the presence of a flag and sign south of that point, but there was a conflict in the evidence, and the question was one for the jury.

Whether placing the two boys south of the point where the work was being done with instructions to stop all vehicles going north was a reasonable precaution to render the place of work safe was, under the circumstances, a question for the jury. These boys were engaged in sweeping the concrete, and, according to some of the evidence, were only a few feet from the men who were spreading the asphalt, and the jury might reasonably conclude under these circumstances that, even though the boys did attempt to stop Jennings, the means taken were not sufficient. The place at which appellee was injured, without the presence of flags, signs, or other means customarily used to warn the traveling public of conditions ahead was inherently dangerous to workmen on the highway, and it was the duty of appellants to use reasonable precautions to render the place safe for its workmen. The evidence was sufficient to take the case to the jury on the question as to whether or not the means employed were reasonably sufficient for that purpose, and the court did not err in overruling appellants' motion for a directed verdict.

Appellants further insist, however, that their motion for a directed verdict should have been sustained, even conceding that they were negligent in failing to use reasonable precautions to render safe the place where appellee was working, because the negligence of the driver of the truck, and not appellants' negligence, was the proximate cause of appellee's injuries. The rule is well established that the...