Poynter v. Alfred Struck Co.

• Decision Date: 14 March 1916
• Citation: Poynter v. Alfred Struck Co., 169 Ky. 126, 183 S. W. 461 (Ky. Ct. App. 1916)
• Parties: POYNTER v. ALFRED STRUCK CO.
• Court: Kentucky Court of Appeals

183 S.W. 461

169 Ky. 126

POYNTER v. ALFRED STRUCK CO.

Court of Appeals of Kentucky.

March 14, 1916

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

Action by Daniel Poynter against the Alfred Struck Company.From a judgment for defendant, plaintiff appeals.Affirmed.

Arthur B. Bensinger and J. Verser Conner, both of Louisville, for appellant.

Fred Forcht, of Louisville, for appellee.

CLARKE J.

Appellee is in the lumber business in Louisville, Ky. and appellant was employed by it as a driver for two or three months before the accident happened which is involved in this action.Until the day before the accident happened, appellant had been driving one of appellee's one-horse wagons, at which time he was directed to and did take charge of and drive a larger and taller wagon drawn by two horses, and the accident occurred when he was attempting to back the larger wagon with the two horses hitched to it into a shed at the close of the second day's work with this team and wagon.The company uses many wagons in its business, which are housed at night in a long open shed inclosed upon the back side only, and covered by a roof that slopes toward the front, so that the roof at the front of the shed is about 6 1/2 feet above the ground, and supported in position by large posts, which also serve to divide the shed into compartments or stalls.Upon the evening of the accident all of these stalls were occupied by other wagons, except the one into which appellant intended to back his wagon.His wagon had a box bed with a seat near the front end which was so high that there was only about 3 inches space between it and the roof of the shed.Appellant drove his wagon along the front of this shed and stopped the team at the proper place to back it into the vacant stall, when, as he testifies, he turned the heads of the horses to one side for the purpose of backing the wagon into the shed, but before he made any move or gave any signal to back, and before he was ready to do so the horses suddenly shook their heads and began to back violently, with the result that his body was caught between the roof of the shed and the top of the wagon seat and crushed.He testifies that he attempted to stop the horses when they began backing by striking them with the lines, but without effect, and that while he was engaged in an effort to control the horses, and before he had time to discover or realize his danger, the accident occurred.

He alleges in his petition that this accident resulted to him: (1) From the negligence of the company in furnishing him a team of horses which were not reasonably safe, of which fact he was at the time of the injury ignorant, and which fact was known to the company, or could have been known by it by the exercise of ordinary care; (2) from the negligence of the company in failing to furnish him a reasonably safe place to work and negligently maintaining a shed so low that there was a space only three inches between the seat of the wagon and the roof of the shed; (3) from the negligence of the company in failing to warn him of the dangerous and vicious propensities of the horses, and negligently directing him to back the wagon into the shed under circumstances known to it to be dangerous, but unknown to appellant.The allegations of the petition were controverted by answer, and a plea of contributory negligence entered which was denied by reply.

This case was tried twice in the lower court.Upon the first trial, at the conclusion of appellant's testimony, and again at the conclusion of all the testimony, a motion was entered by appellee for a directed verdict, which was overruled, and the case submitted to the jury, resulting in a verdict in favor of appellant for $1,625.Before judgment was entered thereon appellee filed a motion and grounds for a new trial, which motion was sustained, and a new trial granted upon the ground that the court erred in overruling the motion for a peremptory instruction.Upon the second trial, at the conclusion of appellant's evidence, a motion was sustained to direct the jury to find for appellee, and a judgment was entered dismissing appellant's petition.To reverse that judgment, and seeking to have a judgment entered in his favor upon the verdict of the first trial, appellant is appealing.

It is conceded that appellant was required to back the wagon into the shed, but that the manner of his doing so was left to his discretion.Counsel for appellant argue that, in view of the fact that he was required to back this wagon into the shed, he was not furnished a reasonably safe place in which to do his work when the roof of the shed was so low, but their principal contention is that the accident was proximately caused by the vicious backing habit of the horses, of which he did not know, but which the company did, or could have known, and of which it did not inform him.

In the case of B. F. Avery & Sons v. Lung,106 S.W. 865, 32 Ky. Law Rep. 702, this court stated this rule:

"If an adult assumes risks incident to the place where he works, and does so with full knowledge of conditions, there is no law in this state that makes the master liable for injury that befalls him on account of the conditions so assumed."

To the same effect are the cases of Wilson v. Chess & Wymond Co.,117 Ky. 571, 78 S.W. 453, 25 Ky. Law Rep. 1655;Nelson Bethel Clothing Company v. Pitts,131 Ky. 65, 114 S.W. 331, 23 L.R.A. (N. S.) 1013;Kelley v. Barber Asphalt Co.,93 Ky. 363, 20 S.W. 271, 14 Ky. Law Rep. 356;Daniels v. New England Cotton Yarn Co.,188 Mass. 260, 74 N.E. 332.

In the case of Jones v. L. & N. Railroad Co.,95 Ky. 576, 26 S.W. 590, 16 Ky. Law Rep. 132, approved inFlaig v. Andrews Steel Co.,141 Ky. 391, 132 S.W. 1015, this court said:

"The master may be allowed to presume, in the absence of knowledge or some warning to the contrary, that an adult servant has sufficient knowledge to operate simple tools and devices, and to conduct and participate in simple operations without special warning or instruction."

And still more in point are this court's utterances in the case of Paducah Pole & Timber Co. v. Brockwell,161 Ky. 424, 170 S.W. 970: "Where a person drives through a door or under a trestle right before his eyes, he must take notice of the size of the door or of the trestle, and not place himself in a position where there is a liability of his being struck."

And in the case of Interstate Coal Co. v. Deaton,148 Ky. 160, 146 S.W. 396:

"While he claims that he did not know of the danger, there are some things that one must know.He must know those things which are right before his eyes, and which he himself admits having seen."

To which we...