Mowrey v. Frazier & Foster

• Decision Date: 18 June 1909
• Citation: 120 S.W. 289
• Parties: MOWREY v. FRAZIER & FOSTER.
• Court: Kentucky Court of Appeals

120 S.W. 289

MOWREY v. FRAZIER & FOSTER.

Court of Appeals of Kentucky.

June 18, 1909

Appeal from Circuit Court, Carter County.

"Not to be officially reported."

Action by Walter Mowrey against Frazier & Foster. Judgment for defendants, and plaintiff appeals. Affirmed.

Armstrong & Duvall, for appellant.

H. R Dysard, for appellees.

CARROLL J.

The appellant Mowrey, who was plaintiff below, brought this action against the appellees, defendants below, to recover damages for injuries sustained by him while in their employment, driving a mule attached to cars loaded with rock that were being transported in this way over a tramroad from the quarry to a tipple nearby.

The grounds of complaint now relied upon are that the defendants owners and operators of the quarry and the transportation facilities, failed to furnish him a reasonably safe place in which to work. Other grounds of negligence were stated in the petition, but there was no evidence whatever to support them and they have been abandoned. Upon the conclusion of all the evidence the court directed the jury to return a verdict for the defendants. The question for our consideration is: Was the evidence introduced sufficient to take the case to the jury upon the question of the failure to furnish a reasonably safe place? It is the contention of the appellees that Mowrey's injuries resulted directly from his negligence in riding on the cars in place of walking on the ground by the side of the cars; it being conceded that, if Mowrey had been walking on the ground, the injury would not have happened. It is further insisted that, as he was fully acquainted with the condition and construction of the track knew it was only a temporary structure, and that cars were constantly being derailed, he assumed the risk. It appears that appellees had built a light and crudely constructed tramroad for the purpose of hauling crushed rock from the quarry to a tipple, a short distance away. The crushed rock was placed in small cars that were about 2 feet in height from the ground, and from 12 to 14 inches deep. These cars were drawn by one mule; the mule walking in the space between the rails. The track was on a downgrade from the quarry, and it was necessary for the driver to use a brake to check the speed of the cars, and each of these cars had a hand brake to control it going down the grade. At the time Mowrey was injured, the mule was pulling two cars, and he was sitting on the end of the second car, with one or both of his legs hanging over between the first and second car. In going down the grade the mule either stepped on or stumbled against one of the ties, and this caused the fastening by which the ends of the rails that met on this...