Lamberg v. Central Consumers' Co.

• Decision Date: 16 May 1919
• Citation: 184 Ky. 284,211 S.W. 746
• Parties: LAMBERG v. CENTRAL CONSUMERS' CO.
• Court: Kentucky Court of Appeals

211 S.W. 746

184 Ky. 284

LAMBERG v. CENTRAL CONSUMERS' CO.

Court of Appeals of Kentucky.

May 16, 1919

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Fred W. Lamberg against the Central Consumers' Company. From a judgment for defendant, plaintiff appeals. Reversed, and cause remanded for new trial.

Isaac Sherman, of Louisville, for appellant.

Kohn Bingham, Sloss & Spindle, of Louisville, for appellee.

CLARKE J.

The appellant, who was plaintiff below, instituted this action to recover damages for personal injuries alleged to have resulted from the defendant's negligently requiring him ever his protest and upon assurance of safety, to perform services without sufficient help and in a place not reasonably safe for the work.

Although other questions are argued, the vital one here is whether the court erred at the completion of plaintiff's testimony in sustaining defendant's motion for a directed verdict. Plaintiff was directed by his superior to assist him in raising from the floor one side of the top of a beer cask and placing thereunder an ordinary wooden "horse." He protested that the task required more than two men and that the floor where the work was to be done was not reasonably safe for the purpose; but, upon assurance that there was no danger to him in their doing the work at the place and without assistance, he helped his superior to lift the load, in doing which he claims to have been injured.

He testified in substance that the cask top weighed in his judgment somewhere about 800 or 1,000 pounds; that the floor where he was required to stand was made of planks which had become worn and warped until the floor was rough and uneven, and some planks were as much as 2 inches below the level of others adjoining them; that in helping to lift the load he was caused by its weight to shift his feet to maintain his balance; that in so doing he could not see where he was stepping and injured his ankle to such an extent that his foot had to be amputated, either by stepping in one of the holes or depressions in the floor, "or my ankle turned on that account." Counsel for defendant then asked him, "On what account?" to which he replied:

"On account of the rough floor there, stepping in the hole. I could not see what I was doing with the weight in my hands."

Later in his cross-examination he was asked and answered:

"Q. Now, Mr. Lamberg, did you injure your foot because your ankle turned, or because you stepped in the hole, or because this board sagged with you? A. I could not say exactly which one it was. It was either one or the other, as I stated there."

Upon the theory that plaintiff's testimony was in effect that his injury resulted, either from his ankle having turned "through no defect in the floor," or because of such a defect, the court gave the peremptory instruction for the defendant under the thoroughly established rule that where the evidence is equally consistent with the existence or nonexistence...