Oyen v. Willings

• Decision Date: 28 March 1919
• Citation: 183 Ky. 742,210 S.W. 464
• Parties: OYEN v. WILLINGS.
• Court: Kentucky Court of Appeals

210 S.W. 464

183 Ky. 742

OYEN v. WILLINGS.

Court of Appeals of Kentucky.

March 28, 1919

Appeal from Circuit Court, Daviess County.

Action by Raymond Willings against C. V. Oyen. From a judgment for plaintiff, defendant appeals. Reversed, with directions to grant a new trial.

W. T Ellis, Floyd J. Laswell, and W. Foster Hayes, all of Owensboro, for appellant.

Clements & Clements and Ben D. Ringo, all of Owensboro, for appellee.

THOMAS J.

The appellee and plaintiff below, Raymond Willings, was employed by appellant and defendant below, C. V. Oyen, as a member of the crew operating a dredge boat with which defendant was digging or enlarging a ditch in Daviess county, and while so engaged he sustained injuries to his leg and other parts of his body by which the leg between the knee and ankle was broken in one or two places and plaintiff was thereby rendered more or less a permanent cripple. He brought this suit against defendant seeking to recover damage for his injuries, alleging, in substance, that defendant failed to furnish him a safe place in which to do his work, and that he had been directed by the foreman in charge to do the specific work at which he was engaged when he received his injuries in the way and manner in which he was performing it, which he alleged was dangerous and known by defendant's foreman to be dangerous, but which danger he himself did not know or appreciate.

The answer denied the negligence relied on, and pleaded both contributory negligence and assumed risk, which, being denied, formed the issues, and upon trial the jury under instructions from the court returned a verdict in favor of plaintiff for the sum of $2,000. Defendant's motion for a new trial having been overruled, he prosecutes this appeal seeking a reversal of the judgment upon the two grounds that the court erred in overruling defendant's motion for a peremptory instruction in his favor, and, having failed to sustain the motion for the peremptory instruction, the court misinstructed the jury to defendant's prejudice.

It appears from the testimony that defendant was engaged in cleaning out an old ditch, or rather making it deeper. The machinery employed was what is known as a "dry land dredge," being a boat about 18 or 20 feet wide and some 30 or 35 feet long, resting upon axles at either end, which at the time were about 35 feet long with wheels on them; the dredge being astride the old ditch in which the work was being done. On the rear of the dredge was an engine, and near the front end was the machinery to which the derrick was attached, as well as the wire ropes and other appliances which operated it. Between the engine and the derrick machinery, there was a large belt or band running, with its lower ply about 12 inches from the floor of the dredge and its upper one by actual measurement 30 inches from the floor although according to some of the witnesses who testified merely from observation the upper ply of the belt was something near 27 inches from the floor. The wheels supporting the dredge ran on rails which were laid upon plank at the edges of the banks of the old ditch.

On the morning in question, about 10 o'clock, the bank on the right side of the dredge was threatening to give way, and plaintiff and a fellow workman, whose duty it was to keep the track on that side in repair, were told by the foreman to procure some old plank with which to prop and hold the bank so that it would not give way. According to plaintiff's testimony, the foreman directed him to go on the other side of the ditch for the plank; but, according to the testimony of the foreman and other witnesses introduced by the defendant, no direction was given as to the place where the plank was to be obtained, there being evidence that there were planks suitable for the purpose on either side of the ditch. However this may be, the proof shows that the foreman directed the two to get two pieces of plank, and they went on the other side of the ditch, the plaintiff procuring two pieces, one 7 and the other 8 feet long, each being 2 inches thick, and about 10 inches wide, and started, with them on his shoulder, across the dredge, and undertook to step over the belt in the space between the engine and the machinery at the front end at a point where the top ply was between 27 and 30 inches from the floor. In doing so, with the load he had, his foot slipped, causing him to fall on the belt, it being in rapid motion, and received his injuries. His fellow workman who preceded him also stepped over the belt, but he was carrying only one small piece of plank about 3 feet long, and he got across without sustaining an accident.

Plaintiff had been at work on the dredge for four days. He was reared upon a farm, and had worked in a coal mine and at a sawmill. At the latter place his work was in connection with the saw rig, and this gave him some experience in the operation of machinery, including belts.

It is insisted by plaintiff that the only practical way by which the dredge could be crossed from one side to the other was by stepping over the belt in the manner he did, while defendant's testimony shows that there was a way to cross the dredge at the rear of the engine and also in front of the crane, but to cross at the latter place it was necessary to step over a small wire rope about two feet from the floor and under another one about 6 feet from the floor, neither of which was being operated at the time, since the power from the engine was disconnected with the machinery operating the crane. Under these facts, it is seriously insisted by plaintiff's counsel that the direction from the foreman to procure the plank was tantamount to a specific direction for plaintiff to go on the other side of the ditch and cross over the belt in returning with the plank, and that this case comes within the rule of the cases of Runians v. Keller & Brady Co., 141 Ky. 827, 133 S.W. 960, L. & N. R. R. Co. v. Adams, 148 Ky. 513, 147 S.W. 384, Consolidation Coal Co. v. Moore, 166 Ky. 48, 178 S.W. 1136, Wasioto & Black Mt. R. R. Co. v. Hall, 167 Ky. 819, 181 S.W. 629, and many others of like character from this court; it being contended that the servant in obeying specific orders from the master is not chargeable with unrestricted assumed risk in such cases because the presumed superior knowledge of the master as to the safety of the place or the method of doing the work will excuse him if under the circumstances he should undertake it.

The theory upon which the servant is relieved of the defense of assumed risk in the cases referred to, and under the circumstances contended for by plaintiff, is well stated in the Runians Case, supra, wherein this court, quoting from Sherman & Redfield on Negligence, § 186, said:

"The servant's dependent and inferior position is to be taken into consideration; and if the master gives him positive orders to go on with the work, under perilous circumstances, the servant may recover for an injury thus incurred, if the work was not obviously so dangerous that no man of ordinary prudence would have obeyed."

Again, the court said:

"This court has always made a distinction where the master or, as in the case at bar, the vice principal, is present and gives directions to the servant to proceed with work which he knows to be dangerous. In such cases the master is liable, notwithstanding the fact that the servant is aware of the danger, unless the danger he is subject to in obeying the orders is so obvious that a person of ordinary prudence would not undertake it."

But for that restriction of the defense of assumed risk to apply for the benefit of the servant, two things must concur, viz., the servant must have been directed to do the particular work in the manner in which he was performing it, and the danger to which he is subjected in obeying the orders...