McEvilly v. L.E. Myers Company

• Decision Date: 06 November 1925
• Citation: 211 Ky. 31
• Parties: McEvilly v. L.E. Myers Company.
• Court: United States State Supreme Court — District of Kentucky

Page 31

211 Ky. 31

McEvilly v. L.E. Myers Company.

Court of Appeals of Kentucky.

Decided November 6, 1925.

1. Negligence — Violation of Duty Causing Injury Essential to Liability. — To create a cause of action against one charged with negligence, he must have owed and violated duty to injured party, and injury must have been proximate result of negligence.

2. Negligence — Complaint Held Bad as Failing to Show Duty to Provide Safe Means of Escape. — Complaint alleging that plaintiff was employed by defendant's subcontractor as engineer, and that while refilling engine standing on inclined track owned by defendant it started backward, due to defective brakes, and that plaintiff, in attempting to escape, ran against car standing on tracks without signal indicating presence, and was injured by runaway engine, does not state cause of action, since there was no duty on defendant, who was not plaintiff's employer, to provide plaintiff with reasonably safe means of escape from unanticipated danger, where it could not reasonably have foreseen emergency and was not responsible for defective brakes.

3. Negligence — Negligence in Leaving Car Without Signal Held Not Proximate Cause of Injury. — Where plaintiff was employed by defendant's subcontractor as engineer, and while refilling engine standing on inclined track owned by defendant, engine started backward, due to defective brakes, and plaintiff, in attempting to escape, ran against car standing on tracks without any signals indicating presence, and was injured by runaway engine, defendant's negligence in so leaving its car standing was not proximate cause of injury.

4. Master and Servant — Injured Employee's Right of Action Against Third Person Under Compensation Act Dependent on Legal Liability. — Where injury to employee of defendant's subcontractor was caused under circumstances showing no legal liability on defendant, employee has no cause of action against defendant, under Workmen's Compensation Act, section 9, which applies only under circumstances creating in some other person than employer a legal liability.

5. Master and Servant — Provision of Compensation Act Giving Injured Employee Option to Sue "Other Person" Does Not Apply as Between Contractor and Employee of Subcontractor. — Under Workmen's Compensation Act, section 9, where injury is caused under circumstances creating in some other person than employer a legal liability, employee has option of claiming compensation from employer or suing other person for damages, expression "some other person" refers to a third party having no connection with general work performed, whose negligence was wholly disconnected with work, and does not apply between contractor and employee of subcontractor working on same premises in performance of ultimate object of contract, especially where all parties operate under Workmen's Compensation Act.

6. Master and Servant — Provision Allowing Compensation from Immediate Employer and Principal Contractor Applies, where all Parties Operate Under Compensation Act. — Where principal contractor, subcontractor, and employee of subcontractor are all operating under Workmen's Compensation Act in performance of subject-matter of contract on same premises, Ky. Stats., section 4891, applies, so that injured employee may hold immediate employer and principal contractor liable under Workmen's Compensation Act, but may recover but one compensation.

Appeal from Mercer Circuit Court.

HENRY JACKSON and C.E. RANKIN for appellant.

E.H. GAITHER and H.L. MEANS for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

The appellant and plaintiff below, T.R. MeEvilly, by this ordinary action, sought to recover of the appellee and defendant below, the L.E. Myers Company, $25,000.00 damages for injuries alleged to have been sustained by him through the negligence of defendant, and in his petition he averred the facts upon which he relies as constituting its negligence. They were: That defendant was the contractor to construct Dix River Dam and that a part of the work was sublet to J.B. Lusk & Company as a subcontractor, and that plaintiff was employed by the latter as engineer of a locomotive engine and was engaged at the time he sustained his injuries in the discharge of his duties as employe of the subcontractor; that he was refilling his engine, which he had stopped on an incline with a brake applied thereto, and from some cause (not stated) he went immediately to the rear of it while it was being refilled with coal and when it was standing on a spur track constructed and owned by defendant when it "unexpectedly and due to defective brakes, which was unknown to plaintiff and could not have been discovered by the exercise of care by plaintiff, and without fault on part of plaintiff, became disengaged and ran back in the dark toward and at plaintiff, and that plaintiff, in attempting to escape being run over and killed by said engine, and in running down the track to a point where he could get off said track, which was blocked on one side by coal and on the other by a cliff or precipice, the plaintiff ran into and was struck by a car wrongfully left standing in the dark on said track, by the defendant, its agents and servants, without a light or other means thereon to show or indicate the presence of said car, causing plaintiff to be knocked down and caught between said runaway engine and defendant's said car, breaking and crushing plaintiff's leg, causing same to be permanently shortened and stiff and useless and crippling and injuring plaintiff in other portions of his body and limbs, to his damage in the sum of twenty-five thousand dollars ($25,000.00); all of which was caused solely by and due to the gross negligence of defendant, its agents and servants, in wrongfully leaving said car standing in the dark without lights or other signal or notice thereon indicating its presence and in said place where it was plaintiff's duty to be in the performance of his duties aforesaid." Defendant demurred to the petition, which the court overruled and to which it excepted. It then filed its answer in which it denied all averments of negligence on its part, or the violation of any duty it owed to plaintiff, and in another paragraph it affirmatively pleaded, in substance, that it had accepted and was at the time operating under our Workmen's Compensation Statute; that plaintiff's employer and defendant's subcontractor (Lusk & Company) had also accepted the provisions of that statute, and that plaintiff as its employe theretofore signed its register by which he also accepted the provisions of the statute and...