Paducah Pole & Timber Co. v. Brockwell

• Decision Date: 04 December 1914
• Citation: Paducah Pole & Timber Co. v. Brockwell, 161 Ky. 424, 170 S.W. 970 (Ky. Ct. App. 1914)
• Parties: PADUCAH POLE & TIMBER CO. v. BROCKWELL.
• Court: Kentucky Court of Appeals

170 S.W. 970

161 Ky. 424

PADUCAH POLE & TIMBER CO. v. BROCKWELL.

Court of Appeals of Kentucky.

December 4, 1914

Appeal from Circuit Court, McCracken County.

Action by Jackson Brockwell against the Paducah Pole & Timber Company.From a judgment for plaintiff, defendant appeals.Reversed, and cause remanded for new trial.

Wheeler & Hughes, of Paducah, for appellant.

David Browning and Irene Krone, both of Paducah, for appellee.

CLAY C.

In this action for damages against defendant, Paducah Pole & Timber Company, plaintiff, Jackson Brockwell, recovered a verdict and judgment for $1,500.The defendant appeals.

Defendant conducts a lumber yard on the river bank in the northern section of Paducah, on property leased for that purpose.Along this property is the right of way of the Illinois Central Railroad Company, which is used to transport engines and cars to the transport boats which are used to ferry them across the Ohio river.The tracks descend gradually from the high ground south of the defendant's yard to the water's edge, and rest upon trestlework and then upon a raised embankment, and finally upon level ground where wagons and other vehicles can be driven across them.The trestle is near the land leased by defendant.Defendant not only used the yard leased by it as a yard, but also stacked lumber on the other side of the tracks.Defendant used the passage under the trestle for the purpose of delivering lumber from one side to the other.Plaintiff was in the employ of a man named Jones, and was engaged in delivering stakes to defendant.The only roadways in the yard were the spaces between stacks of lumber.The place where wagons usually drove across the tracks was where the tracks were on level ground.Some four or five days before the accident, plaintiff claims that he attempted to cross the tracks at the place where the ground was level, and that, in order to do so, the foreman had to cut the cars.The foreman then told him that if he came through with a load thereafter, and found the tracks at this point locked, to use the opening under the trestle.Plaintiff was injured while driving through this opening.The trestle at the opening is about 8 or 8 1/2 feet from the ground on one side, and about 7 or 7 1/2 feet high on the other.The distance between the piles supporting the tracks is 10 or 11 feet.The opening is about 26 feet long.On the ground in the open space beneath the tracks was a line of stumps 8 or 10 inches high, which were the groundwork of old piling which had been removed.Near the center of the beam at the top of the opening on the lower side of the trestle is a small bolt which protrudes from the beam.At the time of the accident plaintiff was driving an ordinary narrow gauge farm wagon loaded with 70 stakes, each 8 feet long and 4 inches in diameter at the butt end.He was seated on top of the load, which brought him in close proximity to the trestle.In passing through the trestle he leaned over for the purpose of watching out for and avoiding the stumps.While doing so his wagon struck one of the stumps and was thereby elevated.This brought his back in contact with the bolt projecting from the beam above, which resulted in the injuries of which he complains.

Defendant insists that the verdict is contrary to the law and evidence and is flagrantly against the evidence.

Plaintiff insists that a recovery was proper for the following reasons Plaintiff, being a servant of Jones, who had a contract with defendant to deliver staves at its yards, was on the premises by implied invitation of defendant.Not only so, but he was directed in case the roadway across the tracks...