Louisville & N.R. Co. v. Mahan

• Decision Date: 01 December 1908
• Citation: 113 S.W. 886
• Parties: LOUISVILLE & N. R. CO. v. MAHAN.
• Court: Kentucky Court of Appeals

113 S.W. 886

LOUISVILLE & N. R. CO. v. MAHAN.

Court of Appeals of Kentucky.

December 1, 1908

Appeal from Circuit Court, Muhlenberg County.

"Not to be officially reported."

Action by Jesse Mahan, a minor, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Browder & Browder and Benjamin D. Warfield, for appellant.

Willis & Meredith, for appellee.

BARKER J.

The appellee, Jesse Mahan, aged 19 or 20 years, was a part of a bridge force in the employ of the appellant, Louisville &amp Nashville Railroad Company, and at the time he was hurt was engaged at work on the bridge spanning Clifty creek, in Muhlenberg county, Ky. J. W. Ellette was the foreman of the crew, and had general supervision of the work. One Parks was the assistant foreman, and, in the absence of Ellette, had charge and superintendence of the crew and work. The accident to appellant, Mahan, which constitutes the basis of this litigation, occurred (as claimed by appellee) as follows There was in use in the work being done a "hydraulic jack," which, just before the accident, was on a flat car near the bridge. Wallace Butt, who generally was an ordinary workman in the crew, but who, appellee claims, was at the time temporarily in charge as foreman, told Mahan to shoulder the jack and carry it from the car to a point a short distance therefrom. The instrument weighed from 150 to 200 pounds, and had handles on each side, and the ordinary way to move it was to have it carried by two men, each holding a handle. Appellee states that, when he was told to shoulder the jack, he demurred on the ground that he thought it was too heavy, but he was told by his superior, Butt, that he (Butt) had himself carried it the day before, that other men had carried it, and that he (Mahan) could also carry it. Whereupon Mahan, in obedience to the orders of his superior undertook to carry the instrument; it being placed upon his shoulder by Butt, who was on the car for that purpose. As soon as the jack was on his shoulder, Mahan found that he could not stand up under its weight, and undertook to throw it from him so as to escape injury, but, failing in this, was crushed to the earth, the jack falling on him, breaking his collar bone, and inflicting other serious bodily injuries. To recover damages for this accident he instituted this action against appellant, alleging that his injuries were caused by the gross negligence of his superior, Wallace Butt. Appellant answered, denying all the allegations of negligence charged in the petition, pleading that Wallace Butt was a fellow servant of plaintiff, and was not superior to him in authority, and also that the injuries occurring to plaintiff on the occasion in question resulted from his own negligence. A trial resulted in a verdict for the plaintiff in the sum of $800, and of the judgment based upon this verdict the railroad company is now complaining.

The chief complaint of the appellant is that the trial court erred in overruling its motion for a peremptory instruction at the close of all the evidence; but it seems to us that this position is untenable, and that the trial court correctly ruled on the motion for a peremptory instruction. The plaintiff testified that he was ordered by Wallace Butt to carry the jack; that he was afraid of its weight, but yielded to the orders of his superior upon the latter's assurance that the weight was not beyond plaintiff's strength. Several witnesses who testified for him agree that Parks had left the place from which the jack was to be carried, and had placed Butt in charge, and that the latter was temporary foreman at the time of the order to plaintiff to carry the jack. The evidence for the plaintiff also tended to show that the weight was much too great for the young man and that it crushed him to the earth as soon as it was placed upon his shoulder. The evidence of the foreman, Ellette, who testified for the defendant, really strengthened the cause of appellee in several particulars. In the first place, it shows that he knew that the hydraulic jack was too heavy to be carried by one man, and that he had issued orders before the accident that it was not to be carried by one man again. This was because he had seen Parks carrying the jack on his shoulder, and it was to him, as...