Pine Mountain R. Co. v. Finley

• Decision Date: 24 March 1909
• Citation: 117 S.W. 413
• Parties: PINE MOUNTAIN R. CO. et al. v. FINLEY.
• Court: Kentucky Court of Appeals

117 S.W. 413

PINE MOUNTAIN R. CO. et al. v. FINLEY.

Court of Appeals of Kentucky

March 24, 1909

Appeal from Circuit Court, Whitley County.

"Not to be officially reported."

Action by R. H. Finley against the Pine Mountain Railroad Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

Benjamin D. Warfield and J. W. Alcorn, for appellants.

T. Z Morrow, J. N. Sharp, and R. L. Pope, for appellee.

LASSING J.

Appellee is the owner of a farm of about 400 acres of land in what is known as "Finley Bottom," on the east side of the Cumberland river, in Whitley county, Ky. In 1907 the Pine Mountain Railroad Company built a line of road along the Cumberland river just across from the Finley farm. The river makes quite a bend at that point and runs for three-quarters of a mile or more along the Finley farm. In January, 1908 appellee filed suit against the Pine Mountain Railroad Company, the Alabama Construction Company, a corporation, and Burk Bros. & Tye, a partnership, wherein he sought to recover of them damages which he alleged he sustained by reason of the negligent, careless, and reckless manner in which the excavating for the roadbed was done. The items of damage, as alleged in the petition, are, in substance, as follows: For gravel and stones thrown upon his land by the blasting $2,500; for injury to his land by causing a change in the channel of the river, whereby it was made to flow against, upon, and over a part of his land, $2,500; for obstructing the public road leading from his farm across the Cumberland river, and connecting with the public road leading from Patterson creek to Williamsburg, the county seat, thereby depriving him of an outlet from his said farm to the county seat, his church, and the public school for the district, $2,000; and for loss sustained in the use of all that portion of his farm lying adjacent to the river, because of the dangers attendant upon the blasting which prevented him and his hands from working the crops upon said land, and prevented him from pasturing stock upon any portion of his farm adjacent to the river, $1,000--making in all $8,000, for which sum he prayed judgment.

The answers of the Pine Mountain Railroad Company and the Alabama Construction Company simply traversed the allegations of the petition. The answer of Burk Bros. & Tye, in addition to traversing the allegations of the petition, pleaded affirmatively that by reason of the blasting some stones were thrown upon the land of plaintiff, that they offered to have these stones removed from his land without expense to him, and he refused to permit it to be done, that they could have removed all of the stones thrown upon the land therefrom at an expense of not to exceed $25, and they therefore denied that they had damaged him by reason thereof in any sum in excess of $25. A motion was made to require plaintiff to paragraph his petition, and, in compliance with the order of the court, he did so, making each item of damage a separate paragraph. The Louisville & Nashville Railroad Company was not a party to the suit, but after the issues had been joined, as above indicated, it tendered its verified petition and asked to be made a party defendant, alleging that it had undertaken with the Pine Mountain Railroad Company to build said road, and that, pursuant to its agreement, it had contracted with the Alabama Construction Company to do the work, and it, in turn, had let certain portions thereof out to Burk Bros. & Tye, independent contractors, and that it was interested in the result of the litigation in that, if it should be held that the character of the work was such as that the owner could not relieve himself of responsibility to third persons who might be injured in carrying out the work, on the ground that it was done by an independent contractor, then, as between it and the said independent contractor, it would be liable. On its said petition the Louisville & Nashville Railroad Company was made a party defendant, and in addition to pleading that the work was done by independent contractors, who were thoroughly qualified to do the work in a proper, skillful, and workmanlike manner, it traversed all of the allegations of the petition. The affirmative matter of the answer of Burk Bros. & Tye was traversed of record, and some other pleadings were filed by each party bearing upon the question of independent contractor; but, for the purposes of determining the questions before us, it is not deemed necessary to consider them. The issues, as finally made by the pleadings, and which were submitted to the jury for their consideration, were those bearing upon the question as to whether or not plaintiff had been damaged in the way and manner alleged in his petition, and the extent thereof.

The trial judge was evidently of opinion that, on account of the character of the work which they contracted with the Alabama Construction Company and Burk Bros. & Tye to do, neither the Louisville & Nashville Railroad Company nor the Pine Mountain Railroad Company could relieve itself of liability on the ground that the injury, if any, was done by the said independent contractors. The case was submitted to a jury, nine of whom returned the following verdict: "We, the undersigned jurors, find for the plaintiff, under instruction No. 2, one hundred and fifty dollars, and instruction No. 3, eleven hundred dollars." Instruction No. 2 is the instruction which authorizes a recovery for injury by reason of stones being thrown upon plaintiff's land. Instruction No. 3 is the instruction which authorizes a recovery for the obstruction of the public road. Nothing was allowed for damage because of stones thrown into the river by blasting so as to change the current and cause it to wash against, upon, and over plaintiff's land, and no instruction was offered or given bearing upon the question of item 4 of plaintiff's petition, to wit, that for which he sought to recover because of inconvenience in operating his farm, occasioned by blasting, or loss of the use of portions thereof because of the dangers with which the blasting was attended. As the instructions given were prepared by plaintiff's counsel, and all that were asked for by him were given, the failure to instruct upon the fourth paragraph of the claim was, no doubt, due to the fact that the evidence offered in support thereof was not regarded as sufficient to justify such an instruction. The jury having rejected the claim of plaintiff for damage growing out of the throwing of stones into the river, and there being no cross-appeal, there is left for our consideration but three questions: First, the correctness of the ruling of the trial court in refusing any instruction on the question of "independent contractors"; second, the correctness of the instructions as given, including the ruling of the trial court in refusing the peremptory instruction asked for by defendants at the close of plaintiff's testimony and again at the close of all of the testimony; and, third, are the damages awarded excessive?

The evidence shows that the line of the road at the point in question ran along the river bank or cliff but a short distance from the river for quite a distance in front of appellee's farm, and separated from it by the river, that the character of the place selected for the roadbed was such that heavy blasting with dynamite or other highly explosive substances was absolutely necessary in order to reduce it to grade, and, as the plans and specifications for the work had been prepared before the contract was entered into with the Alabama...