Mason, Hanger & Coleman Co. v. Kennison

• Citation: 121 S.W. 999,134 Ky. 844
• Parties: MASON, HANGER & COLEMAN CO. v. KENNISON.
• Decision Date: 15 October 1909
• Court: Court of Appeals of Kentucky

121 S.W. 999

134 Ky. 844

MASON, HANGER & COLEMAN CO. v. KENNISON.

Court of Appeals of Kentucky.

October 15, 1909

Appeal from Circuit Court, Pulaski County.

"To be officially reported."

Action by Sherwood Kennison against the Mason, Hanger & Coleman Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sharp Bethurum & Cooper, Faulkner & Sharp, and Lindsay & Edelen for appellant.

Edwin P. Morrow, W. B. Morrow, and R. B. Waddle, for appellee.

BARKER J.

The appellee (plaintiff), Sherwood Kennison, at the time the cause of action stated in his petition arose, was in the employ of the appellant, Mason, Hanger & Coleman Company, a West Virginia corporation. The appellant was engaged in the execution of a contract to widen tunnel No. 10 on the line of the Cincinnati, New Orleans & Texas Pacific Railway Company in Pulaski county, Ky. Appellee was an ordinary laborer working in a gang of men under the direction and control of J. W. Davis appellant's foreman. At the time of the accident complained of, the appellant was engaged in blasting the roof and sides of tunnel No. 10 for the purpose of enabling it to be double-tracked. Upon Kennison and others with him was imposed the duty of coming into the tunnel after the blast and removing the rock and other débris which had been blown down. The accident was caused as follows: Kennison and his co-laborers had been sent out of the tunnel to escape the effect of the impending blast. A railroad train belonging to the Cincinnati, New Orleans & Texas Pacific Railway Company had come up and was waiting to be allowed to go through the tunnel. Of course, it had to be stopped until after the blast had been made and the track cleared of the rock, and débris thrown upon it by the explosion. After the blast was made the men seem to have been given a signal to return to work, and Kennison and his companions proceeded to clear the track so that the train could pass through the tunnel. Almost immediately after Kennison commenced the work of moving the débris, a large stone at the point where the top and the side of the tunnel meet, which had been loosened by the explosion, fell and rolled against appellee, mashing his foot most severely and inflicting other injuries upon him. To recover damages for this injury, appellee instituted this action, alleging in his petition that it was caused by the negligence of the appellant's employés superior in authority to him who failed and refused to make the necessary inspection after the blast and remove the loosened stone so as to make the place where appellee was required to work reasonably safe. The appellant in its answer denied all the material allegations of the petition, and pleaded contributory negligence in a second paragraph. This affirmative matter of the answer having been denied by reply, the issues were completed. A trial before a jury resulted in a verdict in favor of appellee (plaintiff) for the sum of $900. To reverse the judgment based upon this verdict the corporation prosecutes this appeal.

The court instructed the jury in part as follows:

"No. 1. The court instructs the jury that, when the plaintiff entered into the employment of the defendant, he assumed all the ordinary risks and hazards incident to such employment, unless he was acting under the specific orders of and in the presence of the foreman, Davis, his superior servant, and, if you shall believe from the evidence that the plaintiff was at the time he was injured acting under the direct order of his superior, Davis, then and in that event he only assumed such risks and hazards as were plain and obvious to him under the circumstances surrounding this case. The court further instructs the jury that it was the duty of the plaintiff to exercise ordinary care for his own safety while engaged in the employment of the defendant company. It was the duty of the defendant company before ordering the plaintiff into the tunnel after the blast was fired in same to have made such tests of the safety of the tunnel as an ordinarily prudent person would have made under the same or similar circumstances.

"No. 2. You will find for the defendant in this case, unless you shall believe from the evidence that by the gross negligence of the defendant's agents and servants, superior in authority to the plaintiff, the plaintiff was injured by a rock or rocks falling on him at the time and place complained of by him, and further believe from the evidence that the dangerous

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