McFarland v. C. & O. Ry. Co.
| Decision Date | 02 November 1917 |
| Citation | 177 Ky. 551 |
| Parties | McFarland v Chesapeake & Ohio Railway Company. |
| Court | Kentucky Court of Appeals |
Appeal from Boyd Circuit Court.
JOHN T. DIEDERICH for appellant.
WORTHINGTON, COCHRAN & BROWNING and P. K. MALIN for appellee.
In this action brought by the appellant, H. B. McFarland, against the appellee, Chesapeake & Ohio Railway Company, to recover damages for injuries to his person, caused by the falling of a scaffold upon which he was at work as a painter and employe of the latter, the jury, upon the trial and at the conclusion of all the evidence, in obedience to a peremptory instruction from the court, returned a verdict in behalf of appellee. Appellant complains of the judgment entered upon that verdict and has appealed.
According to the evidence, appellant had been in the employ of appellee as a painter upon its water tanks and bridges for about a month previous to the accident. In the performance of his work of painting water tanks it was his duty to replace, or assist in replacing, defective hoops that surrounded them. On May 14, 1914, while appellant and two of his fellow servants were engaged in placing hoops upon appellee's water tank located at Foster, Bracken county, and working under the direct supervision of one Hammonds, appellee's foreman, the swinging scaffold upon which they were standing fell to the ground, because of the breaking of one of the ropes which supported it. The fall of nine or ten feet to the ground produced the injuries received by appellant.
The crew of painters was composed of eight or nine men, besides the foreman, Hammonds, and the scaffold had been suspended and adjusted to the tank by three of these men, but appellant was not one of them. The scaffold was suspended by ropes, the upper ends of which were secured at the top of the tank and the lower ends looped around boards suspended on the sides of the tank. The rope, the breaking of which caused the fall of the scaffold, was a three-quarter inch rope, which supported one end of the scaffold. The only evidence introduced in appellant's behalf was furnished by the testimony of himself and Welburn, a fellow employe. Appellant testified that he had never tested or been required to test the broken rope and did not know of its unsafe condition, or that there was any danger attending its use; that he believed the scaffold a safe place upon which to work, and that there were two persons besides himself on the scaffold when it fell.
Welburn testified that the rope was a three-quarter inch rope of the size and kind customarily used by the crew of which he and appellant were members for swinging the scaffold upon which they stood while repairing and painting appellee's water tanks; that he inspected the rope after it broke, but did not give it a thorough examination; that it was an old rope and had a "dead" or "smoked" look, where it had been handled, and that the rope was in use by the crew for swinging the scaffold when he entered appellee's service, which was about a month prior to the accident, and was continually used for the purpose indicated from that time down to the occurrence of the accident; that he did not know the rope was unsafe for the use to which it was put, but heard Hammonds, appellee's foreman, tell the crew on the day of the accident, and before its occurrence, that not over two men should get on the scaffold at one time; that it was an old line and might break and cause somebody to get hurt. Appellant was present when this statement was made by Hammonds, but the witness was unable to say whether or not he heard the statement. Appellant, upon being recalled, said that if the above statement was made by Hammonds he did not hear it.
The only evidence introduced by appellant as to the nature of his injuries was furnished by his own testimony; according to which it appears that he fell from the scaffold upon his breast and face, and was temporarily rendered unconscious by the fall; that he got a ragged cut on the nose that penetrated the flesh and went through the cartilaginous substance within the nose, received a bruise on the hip and a blow on the back of his head from a board, but that the only permanent injury was that sustained to his nose; the wound received thereon having so badly healed as to obstruct the air passage on that side of the nose and greatly interfere with his breathing. He also testified that he yet suffers from this wound, which has produced a chronic tenderness of the nose that causes it to bleed frequently. He was treated by appellee's physician, Dr. Salmon, and also by his own physician, Dr. Brown, but only lost eleven days from work, at the expiration of which he returned to appellee's service as a member of the same crew of painters, and continued therein until December 1, 1914.
The only witness introduced by the appellee was Dr. Salmon, according to whose testimony appellant's injuries consisted of a bruise on his right hip, one on his elbow, and a laceration of his nose an inch long, which penetrated the skin on the right side of the nose above and cut through the cartilaginous portion of the nose for a distance of about a quarter of an inch, causing a ragged cut, principally on the outside. In the opinion of the witness the injury to the nose was not permanent, and could not have produced the later bleeding of which appellant complains, or any material obstruction to his breathing.
It was, in substance, alleged in the petition that appellant's injuries were caused by the negligence of appellee in failing to provide him a reasonably safe place to work and reasonably safe appliances for doing the work; that is, that the falling of the scaffold was caused by the breaking of a defective and rotten rope negligently furnished by appellee for supporting it. Furthermore, that the defective condition of the rope and the fact that the scaffold by reason thereof was defective, insecure and unsafe for the purpose of supporting appellant and his fellow workmen while painting and repairing the water tank, was known, or, by the use of ordinary care, could have been known, to the appellee and its other employes superior in authority to appellant, but was not known to appellant.
The answer of appellee, in addition to traversing the allegations of the petition, alleged: (1) That appellant was injured by the negligence of his fellow servants; (2) that the materials used in the scaffold, including the rope in question, were suitable and safe; (3) that appellant assumed the risk of injury as a part of the terms of employment; and (4) that appellant, in the matter of receiving his injuries, was guilty of contributory negligence, but for which they would not have been received. The issues were completed by the filing of appellant's reply controverting the affirmative matter of the answer.
It is the contention of appellant that while negligence...
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