McDonald's Adm'x v. Louisville Car Wheel & Ry. Supply Co.

• Decision Date: 11 October 1912
• Citation: 149 S.W. 1142,149 Ky. 801
• Parties: McDONALD'S ADM'X v. LOUISVILLE CAR WHEEL & RY. SUPPLY CO.
• Court: Kentucky Court of Appeals

149 S.W. 1142

149 Ky. 801

McDONALD'S ADM'X v. LOUISVILLE CAR WHEEL & RY. SUPPLY CO.

Court of Appeals of Kentucky.

October 11, 1912

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Henry McDonald's administratrix against the Louisville Car Wheel & Railway Supply Company. Judgment for defendant and plaintiff appeals. Affirmed.

Bradley & Chilton and Edwards, Ogden & Peak, all of Louisville, for appellant.

Burnett Batson & Cary, of Louisville, for appellee.

SETTLE J.

Henry McDonald, an employé in appellee's manufacturing plant lost his life there by coming in contact with a wire charged with electricity, and this action was brought by the administratrix of his estate to recover of appellee damages for his death; it being alleged in the petition, as amended, that it was caused by appellee's negligence in failing to provide him a reasonably safe place and machinery for the performance of his work, and that of J. L. Ross, an incompetent servant of appellee, in turning on the wire, without notice to him, the current of electricity by which he was killed. The answer of appellee traversed the averments of the petition as amended and pleaded contributory negligence on the part of the intestate, and its affirmative matter was traversed by appellant's reply. On the trial, appellee, both at the conclusion of appellant's evidence and after the introduction of all the evidence, asked for a peremptory instruction directing a verdict in its behalf; but it was refused, to which appellee excepted. Thereupon the case was submitted to the jury, under certain instructions given by the trial judge, over the objection of both parties, and they returned a verdict in favor of appellant whereby she was awarded damages in the sum of $4,500. Following the return of the verdict appellee filed a motion and grounds for a new trial, which was granted by the court, upon the ground it had erred in refusing the peremptory instruction asked by appellee. To this ruling appellant excepted. When the case was called for trial at the succeeding term of the court, the parties, after the jury had been impaneled and sworn, entered into an agreement of record, providing that the evidence introduced on the first trial might be considered as offered and heard on the second trial. Thereupon the court peremptorily instructed the jury to find for appellee, which was accordingly done. Appellant then filed a motion and grounds for a new trial, which motion was overruled. She complains of that ruling, the judgment entered upon the last verdict, and of the action of the court in granting appellee a new trial at the previous term; hence this appeal.

It appears from the evidence that appellant's intestate had been engaged for about two years and four months as operator of a crane in appellee's plant; that he had for several years theretofore been a motorman in the employ of the Louisville Railway Company, and, while his experience derived from these employments may not have made of him an expert electrician, it gave him more knowledge of electricity and the danger attending its use in the operation of machinery than was possessed by the average laborer employed in appellee's plant, and enabled him to repair and keep in proper condition for its work the traveling crane operated by him. His duties as operator of the crane were somewhat similar to those which had been performed by him as a motorman on the street cars. The crane was attached to a wheeled traveler propelled by electricity upon an elevated track; the electricity being supplied from wires suspended above the track, connection with which was furnished by a trolley pole extending over the traveler. The crane was used for lifting and carrying from place to place, in appellee's plant, heavy materials used in manufacturing its products and for moving the products as well. The electrical currents for the trolley wires were controlled by a switch in a corner of the building by which it was turned on and off the wires. One William Harbold, a one-armed man, was the electrician of appellee's plant. J. L. Ross, known among the men of the plant as "Happy" Ross, was also an employé of appellee. Though neither an electrician nor a skilled machinist, Ross was useful about the premises as a utility man. He gave frequent assistance to Harbold when required, and also to appellant's intestate and other employés of appellee when requested to do so. It appears from the evidence that, when any trouble occurred with the crane as to which intestate required assistance, he called on Harbold if the trouble...