Ohio Val. Ry. Co. v. McKinley

• Decision Date: 14 December 1895
• Citation: 33 S.W. 186
• Parties: OHIO VAL. RY. CO. v. McKINLEY.
• Court: Kentucky Court of Appeals

33 S.W. 186

OHIO VAL. RY. CO. v. McKINLEY.

Court of Appeals of Kentucky.

December 14, 1895

Appeal from circuit court, Crittenden county.

"Not to be officially reported."

Action by J. B. McKinley against the Ohio Valley Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Blue &amp Blue and P. H. Darby, for appellant.

Waddill & Nunn, Cruce & Nunn, and E. C. Flourney, for appellee.

GRACE J.

This was a suit filed by appellee in the court below, seeking to recover of appellant damages for injuries sustained by him while in the employ of appellant, and as such engaged in blasting rock for the use of the railroad company, in a quarry then owned by them on the line of their railroad in Crittenden county. The injury occurred in October, 1891. Appellant had then owned and operated this quarry since July of that year, having purchase it from Jordan Jiles, who for some months prior to that time had operated same. The injury to appellee occurred by reason of the premature explosion of dynamite, which was then being used for blasting the rock. The allegations made by appellee in his petition are that in the use of this dynamite, and in tamping the same in the holes drilled for that purpose, the hands employed by appellant for this purpose were required to use an iron rod and that this iron rod, as used for that pupose, was highly dangerous; that this danger was known to appellant, its agents, and the superintendent at that time in charge of the quarry; that this iron rod was the only tool furnished by appellant for this purpose; that in this the appellant was guilty of negligence, and of unnecessarily exposing its servants and this employé to great danger; that the danger of so tamping this dynamite in the holes drilled in the rock for blasting with this iron rod was unknown to appellee at the time of the accident. Upon these allegations the issues were made by appellant denying the dangerous character of the iron rod when so used; denying any negligence on its part; and affirming that appellee, its servant, had several month's experience at that quarry in blasting rock with dynamite both before and since its purchase of same; and that in fact he had occasionally acted as foreman and assistant foreman and that he had knowledge of whatever danger attended the use of this iron rod; and that by reason of his employment in this quarry he voluntarily undertook and accepted the risks incident to that character of work. The evidence was by both parties directed along these issues as made, though as it progressed it soon was made clear by the uncontradicted testimony of experts of long experience in the use of dynamite for blasting that it was highly dangerous to use an iron rod for tamping the holes when drilled; that the chief danger consisted in the violent concussion, rather then in the actual touch of the fire to the material in the open air. So clear was this testimony, and so directly was a knowledge of this danger in the use of the iron rod for this purpose brought home to appellant and to the superintendent then in charge, that appellant soon rested its main defense upon the like knowledge possessed by appellee, and evidence was introduced to show that the foreman had warned him of this danger, and had forbidden the use of this tool for this...