De Lozier v. Kentucky Lumber Co.

• Decision Date: 13 February 1892
• Citation: 18 S.W. 451
• Parties: De Lozier v. Kentucky Lumber Co.
• Court: Kentucky Court of Appeals

18 S.W. 451

De Lozier v. Kentucky Lumber Co.

Court of Appeals of Kentucky.

February 13, 1892

Appeal from court of common pleas, Whitley county.

"Not to be officially reported."

Action by J. F. De Lozier, by his next friend, against the Kentucky Lumber Company. From a judgment entered on a verdict for defendant, plaintiff appeals. Affirmed.

Lewis J.

Appellant being under 21 years of age, brought this action by his next friend and father to recover damages for personal injury sustained while employed by appellee to labor at his sawmill. It appears that there was erected a railway track or tramway upon which were placed trucks for the purpose of removing lumber from the mill, as it was sawed, to a yard, where it was stacked; and as the trucks, by their own momentum, moved at considerable speed by reason of descending grade of the track, it was necessary to station a person at the bottom of the incline to check them, which was done by inserting a wedge-shaped stick between the wheels of the trucks and the frame resting on it above the wheels. At that particular occupation appellant was engaged when injured. But the precise cause of his being thrown down and run over by the truck he was attempting to stop was not fully and clearly stated by him, and consequently it does not satisfactorily appear the injury was not the result of his own want of care. The evidence shows that he was then about 17 years of age had been previously employed at that particular business, and was so employed with the knowledge and consent of his father who was at the time also a laborer at appellee's mill. The verdict of the jury in this case not being, in our opinion, palpably against the evidence, must be treated as decisive of the case, if they were properly instructed by the court. The general rule as to a person sui juris is that, when an employe undertakes to perform labor that is necessarily attended with danger to himself, he so far assumes the risks as to require exercise of ordinary care and prudence on his part; and cannot look to his employer for damages upon the ground of negligence, if, by the exercise of ordinary care, he could have avoided the injury complained of. Sullivan v. Bridge Co., 9 Bush, 81. But whether an infant is to be treated as having assumed the risks of personal injury to himself from performance of labor attended with danger, and held to exercise of ordinary care and caution in order to recover...