Schilling v. Andrews Steel Co.

• Decision Date: 26 September 1911
• Parties: SCHILLING v. ANDREWS STEEL CO.
• Court: Kentucky Court of Appeals

139 S.W. 809

144 Ky. 544

SCHILLING v. ANDREWS STEEL CO.

Court of Appeals of Kentucky.

September 26, 1911

Appeal from Circuit Court, Campbell County.

Action by Jacob C. Schilling against the Andrews Steel Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Howard M. Benton, for appellant.

L. J Crawford and Waite & Schindel, for appellee.

CARROLL J.

The appellant, while employed in appellee's steel plant, was injured, and sought in this action to recover damages. The trial court instructed the jury to find a verdict against him, and he appeals.

The evidence shows that appellant was working as a laborer in the bottom of a pit; that his duties were to fasten hooks attached to a movable crane to large buckets in the pit, so that they might be lifted out of it by the crane; that, while he was attempting to fasten the hooks in the places provided for that purpose on the buckets, the hooks gave a sudden twist or jerk and caught one of appellant's fingers between a hook and the bucket and mashed the end of the finger. As appellant in his petition only charged that his injuries were caused "by the gross negligence of defendant's agents and servants superior to him in authority and control, and by reason thereof the forefinger of his left hand was then and there crushed between an iron bucket and an iron hook attached to cables or an electric crane overhanging said pit," it was not permissible for him to show as a ground of negligence that the operator of the crane was incompetent. If he desired to rely upon the incompetency of this employé as a ground of negligence, he should have so stated in his pleading. L. & N. R. R. Co v. Irby, 141 Ky. 145, 132 S.W. 393. As he did not so aver, his right to recovery must be confined to evidence of negligence in the operation and management of the crane sufficient to take the case to the jury. It is difficult to state, except in a general way, how appellant received the injuries complained of. The work he was engaged in made it necessary that he should fasten the large hooks attached to the crane to the buckets, and, in doing this, he was liable at any time to have his finger or hand hurt by the movement of the hooks. Our impression from reading the record is that the injury was due more to accident than negligence, and that it was such an accident as might happen at any time to appellant or any person else engaged in this work.

Appellant...