Louisville & N.R. Co. v. Smith's Adm'r

Citation119 S.W. 241,134 Ky. 47
PartiesLOUISVILLE & N. R. CO. v. SMITH'S ADM'R.
Decision Date20 May 1909
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Hardin County.

"To be officially reported."

Action by Aaron Smith's administrator against the Louisville &amp Nashville Railroad Company. From a judgment for plaintiff defendant appeals. Reversed and remanded for further proceedings.

L. A Faurest, Benjamin D. Warfield, and Chas. H. Moorman, for appellant.

S. M Payton, for appellee.

LASSING J.

While assisting in making an excavation under the track of the Louisville & Nashville Railroad Company, near Nolan, Ky. Aaron Smith was killed by the earth's caving in upon him, and his administrator brought suit against said company and George Taylor, a contractor, for whom he was working, to recover damages for his death, on the ground that it was due to the negligence of the defendants, in that they failed to furnish Smith a reasonably safe place in which to work. The defendants filed separate answers. The railroad company denied negligence on its part, and pleaded that its co-defendant, Taylor, was an independent contractor, and alleged that, if the death of plaintiff's intestate was due to negligence, it was that of his employer, Taylor, the independent contractor, for which it was in nowise responsible. Taylor denied negligence on his part, and sought to shift the responsibility for the accident which resulted in the death of plaintiff's intestate upon the railroad company. Upon the issues thus joined, the case was tried before a jury, which returned a verdict in favor of plaintiff against the railroad company for $5,000. The jury also returned a verdict in favor of the defendant George Taylor. From the judgment predicated upon this verdict, the railroad company is appealing.

Several reasons are assigned why the judgment should be reversed, but from the conclusion which we have reached it is necessary to consider one only, to wit, whether or not the court erred in refusing to peremptorily instruct the jury to find for the railroad company on the ground that the decedent Smith was an employé of defendant George Taylor, who was an independent contractor, and for whose negligence, if any, the railroad company was not liable. The evidence shows that the railroad company had a contract with its codefendant, Taylor, to do the masonry work on the Louisville Division of its road for the years 1907 and 1908. This contract, which is in writing, and signed by Taylor, though not signed by the railroad company, is as follows:

"We, the undersigned, hereby agree to be governed by the following terms during the years of 1907 and 1908, for masonry work on the Louisville Division of the L. & N. R. R.

Stone, cut ................................. for bridge masonry:

Quarry face .................................... per Cu. Yd. $7 00

Dressed ........................................ per Cu. Yd. 7 50

Coping ......................................... per Cu. Yd. 8 00

Scale and tank foundations in place ............ per Cu. Yd. 5 00

New box culverts, in place ..................... per Cu. Yd. 4 00

Box culvert extensions and pipe headwalls ...... per Cu. Yd. 4 50

Paving ......................................... per Cu. Yd. 2 00

Of old stone ................................. per Cu. Yd. 3 00

Dry Retaining Wall:

Of new stone ................................. per Cu. Yd. 4 00

Riprap ......................................... per Cu. Yd. 2 00

Under 30 Cu. Yds ............................. per Cu. Yd. 25

Dry Excavation:

Over 30 Cu. Yds .............................. per Cu. Yd. 30

Water excavation ............................... per Cu. Yd. 60

"Force account to be paid for excavating for, tearing out, and rebuilding bridge masonry; for pointing up and other slight repairs to masonry; for trucking materials from the station whenever necessary; for whatever other work not classified above. In addition, ten per cent. of entire force account is to be allowed for use of tools.

"Contractor to receive in addition to the above, twenty (20) cents per hour, as foreman, during actual time that any one of his gang is being paid for force account.

"Railroad Company to furnish sand and cement, and such transportation as it may deem proper.

"[Signed] Geo. W. Taylor."

There was an old culvert near Nolan, Ky. which was not of sufficient size to carry off the water, and the railroad company notified Taylor that they desired him to put in a new double culvert, instead of the old culvert, at that place. After receiving this notice and the plans and specifications, he commenced the work, and had done a considerable part of the excavating before the decedent Smith was employed. On the morning of the day on which Smith met his death, he applied for work to one H. F. Troutman, who was Taylor's foreman in charge, and was employed by Troutman, and put to work immediately after the noon hour. After he had worked some two hours or more, the walls of the cut in which he was working for the purpose of putting in the culvert caved in, and smothered or mashed him to death.

From the evidence in this case it is clear that the work of putting in this double culvert was being done by the defendant George Taylor under the contract above set out. The railroad company had no control or authority over Taylor in the conduct of said work further than to see that it was done according to the specifications which it had furnished him. It is true that during the whole of the time the work was being done the company kept a man upon the ground for the purpose of seeing that the railroad track was kept safe for the passage of its trains over the place where the excavating was being done. In fact, the company before the work of excavating for the culvert had been commenced had its bridge foreman put in certain false work to support the track. This false work consisted of a bent of four legs resting on a sill which was laid upon one of the walls of the old culvert. Those legs were 12 inches square. On the top of them was a cap 8 by 12 inches. On the top of this cap rested four stringers, three of which were 16 inches square, and the other 8 by 16 inches. These stringers extended 30 feet north from the bent and 30 feet south from the bent, and rested at the other end upon the railroad embankment. Upon these stringers the cross-ties rested. It was shown that this was the usual and customary way for supporting the track while work of this character was being done. It is likewise shown that, when so supported, the track was safe for the passage of trains. After this trestle or false work was put in by the company, Taylor took charge of the work of making the necessary excavating and building the culvert. In the conduct of this work he employed his own hands, and, either personally or through his foreman, directed the manner of making the excavation, and the company had no control whatever over his hands, or the manner in which the excavation was made, further than to see that its track was not endangered by the work. The method of making the excavation and the extent thereof were left entirely under the control of the contractor Taylor. He was paid by the yard for such excavating as it was necessary to do and for the stone work done by him. His written contract required him to remove the necessary earth, for which he received so much per cubic yard, and built the stone culverts, for which he was likewise paid so much per cubic yard; and while, throughout his testimony, he sought to shift the responsibility from himself to the railroad company, when asked the direct question what he had to do under the plans and specifications, he stated, "I had to make excavations such as would allow me to build the culvert according to the plans that were furnished," and he also said that the duties of Miller, the man whom the railroad company had looking after its interests there at that time, were to look after the safety of the track and trains, that Miller gave no directions except not to get too close to the cross bent, which supported the false work or trestle. About these facts there is practically no dispute in the evidence, and they clearly show that the contractor Taylor was an independent contractor. The evidence...

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