Turkey Foot Lumber Co. v. Wilson

• Decision Date: 12 November 1918
• Citation: 182 Ky. 42,206 S.W. 14
• Parties: TURKEY FOOT LUMBER CO. v. WILSON.
• Court: Kentucky Court of Appeals

206 S.W. 14

182 Ky. 42

TURKEY FOOT LUMBER CO. v. WILSON.

Court of Appeals of Kentucky.

November 12, 1918

Appeal from Circuit Court, Lee County.

Action by Howard Wilson against the Turkey Foot Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

G. W Gourley and Virgil S. Beatty, both of Beattyville, for appellant.

Theo. B. Blakey, of Beattyville, for appellee.

CLARKE J.

This is an appeal by the Turkey Foot Lumber Company, defendant below from a judgment for $1,000 recovered by the plaintiff, Howard Wilson, as damages resulting from the alleged negligence of the defendant in failing to furnish him with a reasonably safe tool with which to perform the work he was required to do.

Two questions are presented: First, is a tie pick, when used by a servant 20 years of age, of ordinary intelligence, in loading ties on a flat car, the servant having had four months' experience in its use, such a simple tool that the master, in furnishing it, was under no duty of inspection to ascertain if it were reasonably safe for the purpose, and that the servant assumed whatever risk attended its use? Second, if the tie pick under such circumstances is held to be a simple tool, does an assurance of its safety by the master after complaint of its defective condition by the employé render the master liable for damages resulting to the employé from its use? Both of these questions were considered, and a recovery denied by this court, in the case of Stirling Coal & Coke Co. v. Fork, 141 Ky. 40, 131 S.W. 1030, 40 L. R. A. (N. S.) 837, upon facts so entirely analogous as here presented that we deem that opinion conclusive in the decision of this case.

In the case at bar the plaintiff at the time of the accident was a young man 20 years of age, of at least ordinary intelligence and he had been employed for some 4 or 5 months immediately prior to the accident in loading lumber and ties for the defendant. At the time of the accident he was assisting in loading railroad ties upon a flat car, from some kind of a platform called in the evidence a "ramp," and in doing this work he was using a tie pick, which he had selected from several furnished by the defendant for the purpose. The pick had its point bent in toward the handle at nearly right angles, so that, when driven into the tie, it would hold more securely, and it was used as a grab hook to enable the employé, by driving the point into the tie, to pull the tie into the desired position on the car. A short time before the accident, the plaintiff, after the pick he was using had pulled out of a tie, as a result of which he lost his balance and nearly fell off the car backwards complained to his foreman, Cecil Hampton, that the point of his pick was dull and needed...