Mitchell v. Franklin

• Decision Date: 03 December 1965
• Citation: 398 S.W.2d 707
• Parties: Mrs. F. W. MITCHELL, Sr., and F. W. Mitchell, Jr., Appellants, v. Jay FRANKLIN, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 707

398 S.W.2d 707

Mrs. F. W. MITCHELL, Sr., and F. W. Mitchell, Jr., Appellants, v. Jay FRANKLIN, Appellee.

Court of Appeals of Kentucky.

Dec. 3, 1965.

Rehearing Denied Feb. 25, 1966.

James F. Clay, Danville, for appellants.

George R. Silliman, Danville, for appellee.

JAMES S. SHAW, Special Commissioner.

Jay Franklin, a tenant, sued the Mitchells, mother and son, Boyle County farm owners, for damages resulting from serious physical injuries he received as a result of a fall from a barn being repaired on the Mitchell farm. Upon submission to a jury, a verdict of $6733.35 was rendered and judgment thereafter entered in his favor. The Mitchells appeal, urging a reversal upon the theory that they were entitled to a directed verdict, pursuant to a timely motion made therefor.

There is no great contradiction in the essential facts surrounding this unfortunate accident. The Mitchells, as a part of the farm improvements, had an old tobacco barn in need of repairs, particularly some sliding doors which were dragging. 'Stubs' supporting the barn framework had sunk causing these doors to sag. To cure this, Mitchell and Franklin proceeded, with the help of one Jack Davis, to remove the doors.

They took down the boxing, so that the large wooden posts could be jacked up in order to level the stubs on which the posts rested, thus putting the sliding doors back into a functional condition. The sliding doors were attached to a tubetype track mounted on the exterior of the barn. This track was bolted to 2"' X 6" planks located inside the barn. There was a 2" X 4" plank that was nailed to the sheeting and which supported the tier rails running inside the barn. In order to jack up the large wooden posts, it was necessary to remove the 2" X 4" and the 2" X 6" planks; and, to do this, Franklin removed the track by taking out the bolts, then removed enough of the boxing to allow him to climb on the framework of the barn in order to finish the job.

Taking a pinch bar and, with one foot on the 2" X 6"s and the other on the tier rail supported by the 2" X 4"s, he proceeded to take off the boxing until he was about two-thirds of the way across the barn doors. There being insufficient support from the nails remaining in the 2" X 4"s, attaching it to the boxing, the 2" X 4"s gave way, the tier rails, upon which Franklin was partially standing, fell, the 2" X 6"s collapsed, with the result that he was propelled to the ground receiving serious bodily injuries.

The Mitchells contended in the trial court, and reiterate here, (1) That they were under no duty to furnish Franklin additional help, or to furnish a safe place to work; (2) that Franklin was guilty of contributory negligence; and (3) that he assumed the risk of injury in this undertaking.

Franklin rests his case on the opinion of this Court in E. J. O'Brien and Company v. Shelton's Adm'r., 246 Ky. 537, 55 S.W.2d 352, basing his stand on the evidence of the witness, James Walker, that a safer method to repair the barn was available to the appellants. We believe, and we now hold, that the O'Brien case is not analogous to the one now under discussion. We will therefore attempt to differentiate between it and the one now under scrutiny.

First, E. J. O'Brien and Company, having failed to elect to work under the Workmen's Compensation Act, were deprived of the defenses of assumed risk and contributory negligence, both of which are available to the Mitchells in this case and both of which are heavily relied on to defeat Franklin's claim. Secondly, and even more important, the dangerous condition was not created during the progress of the work, but was one that existed before the demolition began in the...