Swann-Day Lumber Co. v. Thomas

• Decision Date: 16 October 1908
• Parties: SWANN-DAY LUMBER CO. v. THOMAS.
• Court: Kentucky Court of Appeals

112 S.W. 907

129 Ky. 799

SWANN-DAY LUMBER CO. v. THOMAS.

Court of Appeals of Kentucky.

October 16, 1908

Appeal from Circuit Court, Lee County.

"To be officially reported."

Action by Jesse Thomas against the SwannDay Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. E Hogg, F. A. Lyon, Jr., and Greene & Van Winkle, for appellant.

McQuown & Beckham, Hazelrigg, Chenault & Hazelrigg, and J. K Roberts, for appellee.

LASSING J.

Appellee Jesse Thomas, was employed by the appellant company as a laborer in its sawmill at Beattyville, Ky. His duties were to oil and look after the machinery, which included not only the machinery used in the mill building proper, but also the chains and other appliances which were used in drawing the logs from the water up into the mill. On the 9th of August, 1905, when just outside of the door of the mill, where he had gone to look after certain machinery, appellee was struck on the head by a stave thrown from a second-story window of the mill. His skull was fractured, and a portion of it had to be removed. Paralysis of the legs resulted from the injury, and he was shown to be, not only seriously, but permanently, injured. The stave which struck appellee upon the head was thrown from the second-story window by an employé named Coomer, whose special duty was twofold: To "bug" the logs, and to throw the staves from a second-story window out upon a pile in the millyard. The particular stave which struck appellee was not thrown upon the stave pile, but out of a front window onto a drive or roadway, which was used for the teams and mill hands in going around the millyard. In the lower court appellant sought to avoid liability by showing that appellee's duty as an employé at the mill did not require him to be where he was at the time he was injured.

The first ground relied upon for reversal is that the court erred in failing to instruct the jury on the law of fellow servants, and risks assumed by the injured employé. No instruction was asked upon either of these subjects, and hence, under the well-settled rule, the failure of the court to so instruct is not a reversible error. Galbraith v. Starks, 117 Ky. 915, 79 S.W. 1191, and L. & N. R. R. Co. v. Harrod, 115 Ky. 877, 75 S.W. 233. Aside from this, however, there is nothing in the record from which it might be fairly inferred that Coomer and appellee were in the same grade of employment, or fellow servants. One of them was engaged upon the lower floor in oiling and caring for the machinery, while the duties of the other kept him upon the second floor, where he looked after the logs and removed the staves. Their field of labor was entirely separate and distinct; the one had no opportunity to observe the other in the performance of his duty, or to advise, assist or direct him in the discharge of same. Neither had any opportunity of knowing with what degree of care and skill the other was discharging the duties assigned him. The most that the record shows is that they were working for a common master, but the work of each was independent of the other, and in separate and distinct departments of the mill. They were co-servants, but not fellow servants.

In the case of L. C. & L. R. R. Co. v. Cavens, 9 Bush, 559 an employé of the railroad on one train was injured by the negligence of another employé of the same rank on another train, yet it was there held that a recovery could be had because the situation of the parties was such as to preclude the idea that the injured employé had any control over the action or conduct of the one responsible for his injury, "for," said the court, "if Cavens had been on the same train with Armstrong, and in a condition, by reason of his equality with him as an employé, to watch over and provide against his negligence, the reasons then for refusing to make the company liable would apply; but when on different trains, and with no opportunity to exercise this watchful care over each other, the reason for releasing the company from such responsibility ceases to exist, and in such cases those controlling and directing the movements of one train with reference to those upon another and different train must be regarded as the agents of the company." And in the case of L. & N. R. R. Co. v. Edmund, 64 S.W. 727, 23 Ky. Law Rep. 1049, it was held that engineers on separate trains were co-servants, and not fellow servants, and the rule announced in the Cavens Case was approved. In the case at bar the duties of Coomer were confined to the second story of the mill building. Appellee had no opportunity of seeing or knowing what he was doing, and no chance to control his action, or advise or assist him in the discharge of his duties, and while each was the agent of their common master, neither was the agent of the other. No instruction on assumed risks was given for the twofold reason, first, the facts did not authorize it; and, second, none was asked for. Appellee was injured while on the passway in the discharge of his duty. He knew that staves...