Louisville & N.R. Co. v. Yett
| Decision Date | 02 February 1943 |
| Citation | 293 Ky. 71 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Louisville & N.R. Co. v. Yett. |
2. Master and Servant. — Since an employee is the best judge of his own strength, there is an "assumption of risk" by him, and he cannot shift the responsibility for his mistaken judgment onto the master if employee sustains an injury by attempting to lift a load heavier than he is able to bear.
3. Master and Servant. — A master is not required to adopt any particular method of conducting his business, but is required only to adopt usual and customary methods employed by ordinarily prudent persons in like work under similar conditions.
4. Master and Servant. — In action against railroad by section hand for back injury when section hand on one end of tie weighing between 200 and 250 pounds, and two fellow workmen on other end of tie, were lifting tie from ground onto a truck approximately four feet from the ground without use of any tools, evidence was insufficient to establish negligence of railroad.
5. Master and Servant. — Where section hand with four years' experience injured his back while assisting others in loading heavy ties onto a flat truck, in same manner as frequently employed in the work, there was an "assumption of risk" on part of section hand precluding recovery from railroad for injuries.
6. Master and Servant. — In action by section hand against railroad for injuries sustained while lifting ties onto flat truck, testimony concerning lack of proper tools was not competent, where that issue was not raised by pleadings until three days after rendition of verdict.
Appeal from Knox Circuit Court.
H.T. Lively, H.L. Bryant and J.J. Tye for appellant.
J. Milton Luker and C.R. Luker for appellee.
Before Flem D. Sampson, Judge.
Reversing.
Appellee has been in the employ of appellant as a laborer in a section crew for approximately 4 years. While thus employed, he sustained injuries to his back. On the 21st day of February, 1941, he commenced this action to recover for his injuries. In his original petition, he alleged that his immediate superior, who was appellant's foreman, recklessly, carelessly, and negligently directed him to lift, carry, and load crossties and other materials of such weight as to be reasonably calculated to cause injury to any person performing that work. By answer, the company denied the allegations, and affirmatively pleaded assumed risk and contributory negligence, which were denied by reply. On the call of the case for trial, appellee amended his petition, readopting the allegations of his original petition, and further alleging that appellant had ordered him to carry crossties and other materials, without furnishing him fellow workmen sufficiently skilled or adequate in number to perform the work required by the foreman.
The case was tried on November 22, 1941, and on that day, the jury returned a verdict in favor of appellee in the sum of $1,238. Appellant filed motion and grounds for a new trial on the 24th day of November 1941. On November 25, 1941, the third day following the rendition of the verdict, appellee with leave of court, over objection of appellant, filed a second amended petition "to conform to the proof," wherein he alleged that appellant had failed and refused to furnish proper tools (tie dogs) with which to work. On November 29, 1941, the motion for new trial was overruled and judgment entered in conformity with the verdict of the jury.
Since we are of the opinion the court erred in not sustaining appellant's motion for a peremptory instruction, we will not treat of the other grounds urged for reversal of the judgment. The bases of the motion for a directed verdict were (1) there was an utter failure of proof that appellant was guilty of negligence, and (2) appellee assumed the risk of the accident which caused the injury.
Shortly before...
To continue reading
Request your trial