R.B. Tyler Co. v. Kirby's Adm'r

• Decision Date: 11 March 1927
• Citation: 219 Ky. 389,293 S.W. 155
• Parties: R. B. TYLER CO. v. KIRBY'S ADM'R.
• Court: Kentucky Court of Appeals

293 S.W. 155

219 Ky. 389

R. B. TYLER CO. v. KIRBY'S ADM'R.

Court of Appeals of Kentucky.

March 11, 1927

Rehearing Denied May 13, 1927.

Appeal from Circuit Court, Estill County.

Action by Robert Kirby's Administrator against the R. B. Tyler Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Riddell & Shumate, of Irvine, and Charles W. Morris, of Louisville for appellant.

W. E Settle, of Frankfort, Fred P. Caldwell, of Louisville, Ezart Ashcraft, of Irvine, and J. Mott McDaniel, of Beattyville for appellee.

DIETZMAN J.

The appellant, R. B. Tyler Company, in September, 1925, was engaged in oiling a highway which ran from Richmond in Madison county to Irvine in Estill county. Its foreman in charge of the work was R. L. Stafford. On the morning of September 5, Stafford dispatched a large truck, on which an oil tank was mounted, from West Irvine, which is just across the river from Irvine, to the Madison county line, where it was to meet the laborers who had been employed by the appellant to do the work in connection with the oiling of the highway mentioned. Fearing that all of the men whom he had engaged to meet the oiler at the Madison county line might not appear for work, Stafford told a number of men who were gathered about a store at West Irvine that, if they cared to they could ride on the oiler over to the Madison county line, and, if any of the men he had engaged did not show up, he would employ so many of them as would be needed to fill out his complement of laborers, and that those who were not needed could return on the oiler to West Irvine. These men, among whom was the appellee's decedent, Robert Kirby, accepted Stafford's invitation. There was room on the seat of the truck but for one or two men besides its driver, Charles Bebins. The rest of the men, including Kirby, rode on the running boards and a sort of rear seat attached to the back of the oil tank. The trip out to the Madison county line was made without incident.

It developed that only one man of the crowd that went from West Irvine was needed; a man by the name of Yates being selected. The oiler then started on its return trip to West Irvine with the men, who had gone out from West Irvine, riding on it in the same fashion as they had on the outward trip. A short distance from West Irvine a side road running towards the home of the decedent, Robert Kirby, branched off of the highway, on which the truck was traveling. A number of the men who were riding on the truck, and who also lived down this side road, decided to alight from the truck when it reached this road, but it is not shown in this record that Robert Kirby purposed doing any such thing. As the truck was climbing a steep hill near to the point where this side road branched off, a majority of the witnesses for the appellee say that the driver shifted his gears, that when he did so the truck jumped and jerked, and immediately thereafter it "humped up" as though running over a log in the road, and that on looking back they discovered Robert Kirby lying in the road, having been run over by this heavy oiler, and so mashed that before the witnesses could reach him he had expired. Some of the witnesses did not feel the jerk before they felt the oiler "hump."

The decedent's half-brother testified that, because some boys were throwing rocks, he, although he had been sitting on the rear seat of the oiler, was standing up just as the truck gave the jerk, and he saw his half-brother Robert Kirby, who was then standing on the running board and holding to the tool box, jerked loose by the force of the jump and jerk and thrown under the truck. This witness described the jerk as similar to the way an empty box car in a long freight train jerks and jumps when the freight train is suddenly stopped. It is true this witness was somewhat discredited by impeaching testimony, but it was for the jury to say whether they believed him or not. Another witness described the jerk as a big jump forward. All of the witnesses who felt the jerk, except the decedent's half-brother, say that the jerk was no more severe than had been the jerks every time the driver shifted his gears on both the outward trip and the return trip up to the time of the accident. It is agreed that no warning was given by the truck driver to any one that he was going to shift his gears, and it is further agreed that all of the witnesses, except decedent's half-brother, were so placed on the truck as not to see the decedent at the time he went under the wheels of the truck. The appellant's driver denied that he had shifted the gears at the time Robert Kirby fell, if he did fall, from the truck. He stated, and all of the witnesses corroborate him in this respect, that he was going but 4 miles an hour at the time of the accident. He admitted that he would have had to change his gears in the next 15 or 20 feet. The court submitted the case to the jury under instructions we shall presently discuss, and it returned a verdict for the appellee in the sum of $7,500. From the judgment entered on that verdict, this appeal is prosecuted.

The main contention of the appellant is that it was entitled to a peremptory instruction. The first question we have to determine is what was the relationship existing between the decedent and the appellant at the time of the accident. Relying on the case of Beard v. Klusmeier, 158 Ky. 153, 164 S.W. 319, 50 L. R. A. (N. S.) 1100, Ann. Cas. 1915D, 342, appellant insists that he was but a bare licensee. The appellee insists that the relationship was that of master and servant or at least, as he says, a "quasi such relationship." Neither of the parties is correct. In the case of Dickerson v. Bornstein et al., 144 Ky. 19, 137 S.W. 773, the facts were these: A contractor engaged in erecting a building had need of two hod carriers. He instructed his foreman to telephone the hod carriers' union to send over to the building two men. This the union did. On arriving at the building, the hod carriers were informed that the foreman was up on the fourth floor, and they were told to go up there and see him relative to securing employment. On their way up they had to cross a place which appeared to them to be a solid floor, but which in fact was a hole covered with some loose trash. On stepping upon the trash one of these men fell through the hole to the basement and was severely injured. He brought suit against the contractor, pitching his action on the theory that he was at the time of the accident the servant of the contractor. We said:

"He [the hod carrier] had not been employed when he was hurt, but was at the building seeking employment. The relation of master and servant did not exist. It is true he was at the building by invitation and was attempting to go up on the ladder by the direction of the man who had telephoned for him to come. But this fact did not show any right to recover under the allegations of the petition."

The rest of the opinion plainly intimates that this injured man was at the time of the accident an invitee of the contractor.

In the case of L. E. Meyers' Co. v. Logue's Adm'r, 212 Ky. 802, 280 S.W. 107, the facts were these: The deceased, who had been employed by the Meyers' Company, but who had left its services, went to its place of business to...