Nugent Sand Co. v. Howard

• Decision Date: 18 December 1928
• Parties: NUGENT SAND CO. v. HOWARD.
• Court: Kentucky Court of Appeals

11 S.W.2d 985

227 Ky. 91

NUGENT SAND CO. v. HOWARD.

Court of Appeals of Kentucky

December 18, 1928

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Robert Howard against the Nugent Sand Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Matt O'Doherty, of Louisville, for appellant.

Beckham Overstreet and Chas. T. Ray, both of Louisville, for appellee.

WILLIS J.

This is a personal injury case. Robert Howard was hurt while working for the Nugent Sand Company. He sued to recover damages alleging negligence on the part of his employer in providing him with an unsafe appliance. The defense consisted of a denial of negligence, coupled with an affirmative plea to the effect that the defective appliance that caused the misfortune was constructed by Howard himself for his own convenience and used for his own purposes. A trial resulted in a verdict for the plaintiff in the sum of $4,000. A new trial was requested and refused, and the defendant has appealed to this court, seeking a reversal of the judgment.

The arguments on this appeal have taken a wide range, but the case is within narrow compass. Appellant had elected not to operate under the Workmen's Compensation Law, and the common-law defenses of assumed risk, negligence of fellow servant, and contributory negligence of the injured party were not available to it. Kentucky Statutes, § 4960; Gibralter Coal Mining Co. v. Nalley, 214 Ky. 431 283 S.W. 416.

Yet the burden was on the plaintiff to show primary negligence on the part of the defendant, proximately producing the injury of which he complained. Gatliff Coal Co. v. Sumner, 196 Ky. 592, 245 S.W. 144; Deboe's Adm'r v. West Ky. Coal Co., 216 Ky. 198, 287 S.W. 568.

Howard was injured by a fall caused by the breaking of a wooden crosspiece on a "chicken ladder," used by the workmen to mount and descend from the structure on which Howard and several other men were working. It became the duty of Howard to get a board on the ground and carry it to the men on the structure. The "chicken ladder" consisted of boards nailed crosswise on a single stanchion. Howard had made his descent in safety, but, as he returned, the top cross-board on the "chicken ladder" gave way, and Howard was precipitated to a pile of débris below, resulting in severe, painful, and probably permanent injuries. There was testimony tending to show that the boards used for constructing the ladder were defective and insufficient, and that they were insecurely fastened. It was not disputed that the appliance was negligently constructed and was inadequate for the use to which it was put.

Appellant introduced testimony to the effect that Howard himself constructed the appliance and used it upon his own initiative and for his own convenience without permission or authority from his employer. On the other hand, Howard produced evidence to show that the particular appliance was provided by the employer for the use of the men, and that they were directed to use it in the manner described. A simple issue of fact was thus made, to be resolved by the jury, whose province it was to determine, from the conflicting evidence, the truth of the matter involved. The verdict of the jury in favor of plaintiff requires us to accept, for the purposes of this appeal, the version of the affair given by the plaintiff's witnesses. The evidence was ample to sustain the finding of the jury in favor of plaintiff, and, if no error of law intervened, the verdict must stand. Denny v. Darraugh, 212 Ky. 655, 279 S.W. 1069; Nichols v. Harvey, etc., 206 Ky. 112, 266 S.W. 870; I. C. R. R. Co. v. Long, 146 Ky. 170, 142 S.W. 212.

Appellant makes many complaints of the rulings of the trial court. It is said the instructions were erroneous and inadequate, and that the evidence was permitted to take a range beyond the limit fixed by the plaintiff in his pleadings. The complaints of the instruction to the effect that the facts in issue were assumed as true, and that the theory of the defense was not presented, are without merit. The court did not assume that appellant furnished the defective ladder. In succinct and simple form the issue on that subject was specifically submitted to the jury, and it was directed to find for the defendant, if the plaintiff for his own convenience constructed and used the ladder upon which he was hurt. On the other hand, the jury was directed to find for the plaintiff, if the ladder was furnished by the defendant for his use, and it had failed to exercise ordinary care to provide an appliance reasonably safe, which failure had been shown by the proof to be the proximate cause of the injury. These instructions were correct in form and sufficient in substance, and sharply defined the issue between the parties. It is insisted that the standard of ordinary care defined in the instructions exacted too much of the defendant, and that it was liable only for gross negligence, or the failure to use slight care. Yellow Poplar Lbr. Co. v. Bartley, 164 Ky. 763, 176 S.W. 201.

The master is under duty to exercise ordinary care to furnish the servant with appliances reasonably safe for the purposes intended, and failure to exercise such care constitutes actionable negligence. The duty thus imposed is nondelegable and any servant or agent intrusted with that duty is the representative of the master, whatever his general...