Larkin v. Baker

• Citation: 308 Ky. 364,214 S.W.2d 379
• Parties: LARKIN et al. v. BAKER et al.
• Decision Date: 28 May 1948
• Court: Court of Appeals of Kentucky

214 S.W.2d 379

308 Ky. 364

LARKIN et al. v. BAKER et al.

Court of Appeals of Kentucky

May 28, 1948

Rehearing Denied Nov. 23, 1948.

Appeal from Circuit Court, Mercer County; K. S. Alcorn, Judge.

Action by Willie Baker and another against Dennis Larkin and others for injuries occurring while plaintiffs were operating a hammer mill belonging to defendants. From an adverse judgment, defendants appeal.

Judgment reversed.

R. W. Keenon, and Keenon & Odear, all of Lexington and I. C. James, of Harrodsburg, for appellants.

Earl Dean, and E. W. Draffen, both of Harrodsburg, for appellees.

CLAY Commissioner.

Appellees husband and wife, suffered personal injuries as the result of an accident which occurred while they were operating a hammer mill on the farm of appellants. They each recovered a judgment of $1,000. On this appeal the only question we deem it necessary to consider is whether or not appellants were entitled to a directed verdict.

Appellees were tenants of appellants. They moved onto the latters' farm in Mercer County in 1944. In a barn on the farm was a hammer mill, used for the purpose of grinding corn. In the fall of 1945, this hammer mill was operated by appellees, and appellants were there at the time and gave some assistance. On this occasion the belt which connected a stationary gasoline engine with the hammer mill was slipping off. In order to remedy this condition, either appellant Mr. Larkin or appellee Willie Baker constructed what is known as an 'idler.'

This idler consisted of two wooden oak planks 7 feet in length which were attached to scaffolding above the pulley belt extended below the belt and were fastened at the bottom by a bolt inserted through a length of pipe. A rope was attached to these planks, and by manipulating the rope, the belt could be tightened and kept in line with the pulleys on the engine and the hammer mill. This device was located halfway between the two pieces of machinery. After the idler was constructed, on the following day the machinery was operated to grind corn for two or three hours, and worked satisfactorily. The evidence indicates that the hammer mill was not again used until March 7, 1946, at which time the accident occurred.

From the evidence it is impossible to determine just what did happen. Appellees, with their son, were grinding corn. The mill had been in operation for over half an hour. All of a sudden the idler and the fly wheel on the engine fell apart, and appellees were struck by disintegrating objects. Mr. Baker's version of the cause of the mishap was as follows: 'The idler pulled loose from up at top was all I know.' Later in his testimony when asked if he knew what had occurred, he answered: 'I don't know exactly; I heard the racket--pulling loose and it struck me before I could get away.' Mrs. Baker testified 'when the mill started grinding, I started putting in corn, and the piece flew and evidently hit me----.' Later in her testimony she stated that she could not tell how it happened.

Appellees' son, Morris, stated: 'When the mill blowed up, exploded, I was putting water in the radiator, and when it all started flying around me, I went to the ground.' Mr. Baker himself admitted that he had told a neighbor that 'the engine blowed up.'

Shortly before the accident Mr. Baker had been using a tobacco stick to 'hold the belt on to get the idler tight.' The son, Morris, had used the rope on the idler in some manner to tighten up the belt. In addition, Mrs. Baker had put some molasses on the belt to make it stick.

Appellees' principal theory of liability was that appellant, Mr. Larkin, negligently constructed the idler; that it was unsafe; that he assured appellees it was safe; and because of its defective construction, it was the cause of appellees' injuries. We note that appellees did not stick to this theory throughout the trial as they introduced an expert witness not only to testify about the idler, but to prove that the pulley had been improperly welded on the fly wheel of the engine.

Assuming but not...