S.F. Dana & Co. v. Blackburn

• Decision Date: 09 January 1906
• Citation: 121 Ky. 706,90 S.W. 237
• Parties: S. F. DANA & CO. v. BLACKBURN.
• Court: Kentucky Court of Appeals

90 S.W. 237

121 Ky. 706

S. F. DANA & CO. v. BLACKBURN.

Court of Appeals of Kentucky.

January 9, 1906

Appeal from Circuit Court, Campbell County.

"To be officially reported."

Action by Hamilton Blackburn against S. F. Dana & Co. From a judgment for plaintiff, defendant appeals. Reversed.

Robertson & Buckwalter and Thos. L. Michie, for appellant.

Gray &amp Hall, for appellee.

SETTLE J.

This is an appeal from a judgment of the Campbell circuit court entered upon the verdict of a jury, whereby appellee recovered of appellant $750 in damages for personal injuries received while engaged in its service as a shoveler of coal. Appellant, a corporation, owns and operates a coal elevator on the Licking river in the city of Newport. The coal it handles is carried to its elevator in barges, which are moored to a float and the float to the bank at the foot of a double-track tramway, which connects the float with an engine house and coal sheds on an elevated point overlooking the river. The coal is loaded from the barge in cars standing on the float, which are run up one of the tracks of the tramway to the coal sheds above, and when emptied of coal are returned upon the other track of the tramway to the float below. The cars are moved up and down the tramway by means of a wire cable, which passes over a drum operated by a steam engine; the drum and engine being situated in the engine house at the top of the tramway. On the float is a hopper supported by upright posts. By the use of a steam digger coal may be dumped into the hopper, through which it runs into the cars when placed beneath the hopper to receive it. When the steam digger is not in use the coal is thrown by appellant's shovelers from the barge into the cars on the float with shovels, and such was the manner of loading the coal on the cars when appellee received the injuries complained of. The shovelers were paid for their work by appellant according to the number of cars loaded by them, respectively. A shoveler and truckman were assigned to each car, it being the duty of the truckman to aid the shoveler in getting the empty car to the place on the float where it could be loaded by the shoveler from the barge, and the further duty of the two, after it was loaded--the shoveler by pushing and the truckman by pulling it--to move and adjust the car to the track of the tramway; and, when the loaded car was adjusted to the track upon which it ascends to the coal sheds, it was the duty of the shoveler who loaded it to attach it to the wire cable by dropping the ring at the end of the cable over the hook, or "goose neck," on the end of the car, after which the car would by the action of the engine and drum in pulling the cable be drawn to the unloading place above.

Although several employés of appellant were present when appellee was injured, some of whom were introduced as witnesses, none of them saw or could tell how it was done. The only witness on that point was appellee himself, and his testimony is quite confused and indefinite. When questioned by his counsel as to the manner of receiving his injuries, he said: "Well, there was a certain car after dinner, and when I was taking it down to the run, Mr. Elam Grizzell--I think that is his name--which are the river boss, was taking mud off the track, and I hollered to him to get out, so I could pull the cable wire rope. After he had gotten out, why I taken hold of the hook and swung to put it over the goose neck, and as I did why I sort of slipped and throwed my hand up against the car. At that time I looked down the car was going, I struggled to get aside of it, and found myself I was being mashed, and that was the last I knowed of." Upon being asked if he did not slip before he was caught by the car, appellee said: "When I was feeling for the cable as I went to hook it, I slipped and got against the car. That is the last I remember of it till I was being mashed." But, taking appellee's testimony as a whole, and giving it a meaning most favorable to him, it was in substance that, after loading a car, he was assisted by the truckman to get it in position for its ascent to the coal shed and had just attached it to the cable, when, without notice to him, it was started up the tramway, observing which he tried to get out of its way, but in doing so slipped and fell, which occasioned his being caught between the car and a post of the hopper, whereby his body was crushed, several of his ribs broken, and other injuries of a serious nature sustained by him. His testimony fully establishes the facts that it was his duty to attach the cable to the car and that he had so attached it before he was injured. Indeed, the latter fact cannot be disputed; for the car could not be moved until it was so attached.

It is appellee's contention that he was injured by the negligence of appellant's engineer, that the latter was his superior in authority, and that the negligence consisted in the moving of the car, by which he was injured, without notice to him and before he could reach a place of safety after attaching the cable to it. His own testimony was that he gave no signal to the engineer to start the car, and that as, in attaching the cable to the car and when injured, he was so situated that he could not see the truckman, or be seen by him, he could not tell whether the car was moved by a signal from the truckman or not. Appellee also testified, in which he was corroborated by one other witness, that the car was sometimes started by the engineer without a signal; for when looking from the window of the engine room out on the tramway and float, as he often did, he could tell when the cable was attached to the car by its taut condition, and when in such condition he knew the car could be moved. Therefore a signal was unnecessary; but the car was usually started by a signal from the truckman to the engineer. If the engineer was not at the window, or in sight, the signal was given by a halloo from the truckman. In testifying, appellee would not undertake to say, and did not know, whether or not the engineer was at the window of the engine house when he attached the cable to the car, and no other witness...