Lay's Adm'R v. Harlan Producers Coal Corp.
| Decision Date | 07 February 1936 |
| Citation | 262 Ky. 612 |
| Parties | Lay's Adm'r v. Harlan Producers Coal Corporation. |
| Court | United States State Supreme Court — District of Kentucky |
1. Master and Servant. — "Negligence" for consequences of which master is liable to servant consists not merely in general breach of duty, but breach must be violation of duty that master owes to particular servant at time and place when and where servant is injured.
2. Master and Servant. — Servant, who departs from performance of his task as directed by master and is injured while pursuing departing course, cannot recover from master therefor, although injury may have resulted from master's general negligence.
3. Master and Servant. — Where employer's lineman and electrician was directed to repair telephone line which did not operate because insulation had been worn away, employer held not liable for death of lineman electrocuted while relocating line, without employer's authorization, on post carrying high-voltage electric current.
4. Master and Servant. — Employer's failure to operate under Workmen's Compensation Act does not dispense with necessity of allegation and proof of actionable negligence toward deceased employee and that such negligence proximately caused employee's death (Ky. Stats., sec. 4880 et seq.).
Appeal from Knox Circuit Court.
J.B. CAMPBELL for appellant.
H.H. OWENS for appellee.
Affirming.
For some four or five years previous to July 27, 1934, Charlie Lay was in the employ of the appellee and defendant below, Harlan Producers Coal Corporation, mainly as a practical electrician. His duties chiefly consisted in constructing and maintainng outside wiring for telephone and electrical purposes in the operation of defendant's small coal mine, and in furnishing and supplying its miners' residences with such utilities, as well as supplying the company itself with them. As such employee he had prior to that time constructed and installed an electrical power line upon the grounds of defendant by which electricity was conveyed into its mine, and from such power lines into the residences of its employed miners. He had also constructed a telephone line connecting defendant's commissary with its tipple and with its mine. As constructed the power line, with the necessary transformers on some of its posts, was located on one side of an inclined track over which the coal was carried from the mine on the top of the mountain to its foot in some small coal cars, where, as we understand, was located defendant's tipple; and the telephone line (also constructed by him) was on the other side of that inclined track some 150 feet from the electric power line. The telephone line was, at places on its route, attached to saplings where they were conveniently located, and to posts where there were no convenient saplings. The wires of the telephone line had gotten out of repair so that it could not be used for the transmission of messages, and on the day mentioned Lay undertook to and embarked on the task of repairing it. The tools with which he worked in discharging his duties as such lineman were furnished by himself and belonged to him. Defendant's mine is in Knox county and its stock is chiefly owned by Robert Wheeler.
The disrepair of the telephone line that Lay undertook to correct consisted in the wearing away in places of the insulation of the two twisted wires forming it, so that the naked wires would come in contact and produce a short circuit preventing conversation over it, all of which Lay knew and undertook to repair. Some time after 7 o'clock a.m. on the day mentioned, he asked Mr. Wheeler to permit Charlie Hammons to assist him in making the repairs, and which request was granted. He then took his tools, and with the assistance of Hammons removed the telephone line from the trees and posts to which it was attached and replaced insulated wires at all sections where the insulation had worn away. After that was done he concluded that he would remove the telephone line from where it had theretofore existed and attach the wire to the posts of the high-powered electric line to which we have referred, and which, as we have seen, was some 150 feet away from the telephone line as theretofore erected and maintained. The method of attaching the telephone wire to the posts was by means of hangers driven therein, and then wrap the wire around them after being so driven, and that method was pursued by Lay in attaching the telephone wire to the posts of the electric line at a point on them about midway between the ground and the high-powered electric line at the top of the posts, which was some 25 feet or more above the ground. When he arrived at a post upon which there was a transformer (that he had also installed on that electric line), he discovered that the elevation that he had adopted was not high enough to keep the telephone wire from resting on a fence between that post and the next one below it. Some 4 or 5 feet below the high-powered wire on that post were some individual service wires running to some mining houses and carrying an electrical current of 110 volts. Lay then concluded to elevate the telephone wire on that post, and he ascended it to a point where the service wires left it and projected his body a short distance between them, when Hammons, who was on the ground helping to stretch the wires, observed him looking to the top of the post where the high-powered wire was attached and where the transformer was located, when he appeared to give way and slid down the post and died an hour or so after being taken to a hospital, and following a number of efforts to resuscitate him.
Joe Cook was thereafter appointed administrator of his estate and brought this action against defendant in the Knox circuit court to recover damages for his death, which plaintiff alleged was produced by its gross carelessness and negligence whereby his decedent lost his life by electrocution. The answer denied the material averments of the petition, and at the trial the court sustained defendant's motion for a peremptory instruction in its favor at the close of plaintiff's testimony, followed by a verdict in favor of defendant as so directed, and plaintiff's motion for a new trial having been overruled, he prosecutes this appeal. The court in its order sustaining defendant's motion for a peremptory instruction did not state the grounds therefor; but counsel for both sides argue in their briefs in this court the only two possible ones upon which the action of the court could be predicated and they are: (1) That decedent's death was not produced by electrocution as plaintiff contends, but was the result of some other cause, either heart failure or sunstroke, since the day (according to the proof) was an extremely hot one and decedent appeared to be greatly fatigued from the heat during the progress of his work; and (2) that even if decedent was electrocuted from the current carried by the service wires with which he voluntarily came in contact, defendant nevertheless...
To continue reading
Request your trial