Moreland's Adm'r v. Indian Refining Co.

• Decision Date: 14 February 1912
• Citation: 143 S.W. 395,146 Ky. 760
• Parties: MORELAND'S ADM'R v. INDIAN REFINING CO.
• Court: Kentucky Court of Appeals

143 S.W. 395

146 Ky. 760

MORELAND'S ADM'R v. INDIAN REFINING CO.

Court of Appeals of Kentucky.

February 14, 1912

Appeal from Circuit Court, Scott County.

Action by Samuel Moreland's administrator against the Indian Refining Company. From a judgment for defendant, plaintiff appeals. Affirmed.

B. M Lee, for appellant.

Bradley & Bradley, for appellee.

MILLER J.

On December 16, 1908, Samuel Moreland was killed while working as a mixer of mortar for the stone masons who were building a house for appellee in Georgetown. The duties of Moreland were to mix the mortar in a box which stood some 30 or 40 feet from the building, and then carry it to the masons who were laying concrete blocks in the wall of the building. After the building had grown to the second story, the mortar was hoisted in buckets, which were carried up to the workmen by means of a block and tackle operated by horse power. There were the usual helpers, or men to wait upon the masons while they were at work upon the walls, and it was the duty of these helpers to take charge of the buckets of mortar when pulled to the top of the building by the block and tackle apparatus, and carry them to the point upon the building where the masons needed mortar in their work. The walls of this building which appellee was erecting were made of concrete blocks of uniform size; each block weighing about 90 pounds. The block and tackle were used to carry the concrete blocks to the top of the walls in the same manner as the mortar was carried up. The building in this instance was two stories in height; the top of the gable being about 28 feet from the ground. The wall was about finished, when McMeekin the foreman, came to the building and called away, for other work, all the men who had been at work upon this building except Perkins, the stone mason, and his helper, Willie Moreland, who were on the top of the building, and the deceased, Samuel Moreland, who was on the ground mixing mortar. There were a number of other men inside of the building working at a forge; and when the gable of the building had been finished there remained one concrete block unused, and the usual smaller pieces of blocks and material which had been cut in making the angle of the gable. It was the duty of Willie Moreland, as the helper of Perkins, to clean up the rubbish after the work was finished. Just before the accident, McMeekin, the foreman, stopped at the mortar box and said something to Samuel Moreland as he passed; whereupon Samuel Moreland immediately called to his son, Willie Moreland, who was on the top of the building, and said that McMeekin had directed Willie Moreland to throw the unused blocks down from the top of the wall, and clean up. Samuel Moreland then went into the building and notified the men inside that the rubbish was to be thrown from the top of the building, and that they must not come out. He, however, after delivering the message, immediately turned and came out of the door, and was struck and killed by the falling concrete block which had been thrown from the top of the building by his son, Willie Moreland. Appellant, as the administrator of Samuel Moreland, filed this suit to recover damages for the alleged negligent killing of his intestate. Appellee answered, denying the negligence; alleging that the Morelands were fellow servants, and pleading contributory negligence upon the part of Samuel Moreland. At the conclusion of the plaintiff's testimony, the circuit judge peremptorily instructed the jury to find for the defendant, and from that ruling this appeal is prosecuted.

It is insisted that McMeekin, appellee's foreman, was negligent in directing the concrete block to be thrown from the wall of the building, and that it should have been carried down by the same means by which it was carried to the top of the wall--by the workmen in the ordinary way. It is evident however, that the block and tackle apparatus could not be used to lower the concrete block, since the horse power could not be used for that purpose, and there was not sufficient hand power accessible to hold the weight of the stone. The usual way of carrying these blocks from place to place was by putting a small stick through the hole in the center of the block, with a man at either end of the stick; but the blocks could not be so carried down the ladder. And, in this connection, it is insisted that appellee was negligent in removing to another place all of its workmen, and not leaving upon these premises a sufficient force of men to properly lower the stone by means of the block and tackle. The petition, however, confines the alleged negligence,...