Langhorn, Johnson & Co. v. Wiley

• Decision Date: 08 March 1906
• Citation: 91 S.W. 255
• Parties: LANGHORN, JOHNSON & CO. v. WILEY.
• Court: Kentucky Court of Appeals

91 S.W. 255

LANGHORN, JOHNSON & CO. v. WILEY.

Court of Appeals of Kentucky.

March 8, 1906

Appeal from Circuit Court, Johnson County.

"Not to be officially reported."

Action by J. M. Wiley against Langhorn, Johnson & Co. From a judgment in favor of plaintiff, defendants appeal. Reversed.

See 87 S.W. 266.

D. J Wheeler, C. M. Cooper, and W. I. Harkins, for appellants.

C. B Wheeler, for appellee.

CARROLL C.

This action to recover damages for personal injuries was instituted by appellee against the appellants, and is based on the fact that they failed to furnish him proper tools to work with. The appellee was a common laborer engaged in track laying, and similar work, on a branch road being constructed by the Chesapeake & Ohio Railway Company. The appellants were general contractors for the work, and sublet parts of it to other firms; and it is claimed by the appellants that appellee, when he received the injury complained of, was not in their employment, but was working for one of the independent subcontractors; and they seek to escape liability on this ground. The evidence, however, although somewhat confusing on this point, tends to show that the appellee when he was injured, was working for the appellants. He was employed by Mr. Stringfeller, who was a foreman for them under Mr. E. T. Morris, their general manager. He was paid by them for his services. The jury under a proper instruction found this issue of fact adversely to appellants, and their finding is supported by the evidence. At the time appellee was injured, he was holding the handle of a tool called a "T-rail cutter," which at the time was being used for splitting rock, and a fellow laborer was engaged in striking it with a heavy sledge, and, while thus occupied, a small piece of the T-rail cutter, or sledge, flew off and struck appellee in the arm near the wrist, penetrating the flesh and inflicting a wound that seriously injured him; and at the time of the trial--more than a year afterwards-- he was suffering from the yet unhealed wound. The T-rail cutter is a steel wedgeshaped instrument, sharp at one end, with a head on the other, is about 2 inches broad and 8 or 10 inches long, and in the center has a handle some 20 inches in length. One person holds it in place by the handle, while another strikes it with a sledge. This T-rail cutter, as it appears from the evidence, is primarily intended for, and generally used in, cutting off the end of steel rails, but is occasionally used in splitting rock; although a tool called a "wedge" and held in place by the hand while being struck is generally used for splitting rock. Appellee had never used this T-rail cutter before, but had probably seen others use it in cutting rails, as he had been working for about two months before the injury in laying rails and ballasting the track. On August 24th, in company with other laborers, he was ordered to go and get out a lot of rock; and on August 25th they...