W.H. Neill Co. v. Rumpf

• Decision Date: 11 June 1912
• Citation: 147 S.W. 910,148 Ky. 810
• Parties: W. H. NEILL CO. v. RUMPF.
• Court: Kentucky Court of Appeals

147 S.W. 910

148 Ky. 810

W. H. NEILL CO. v. RUMPF.

Court of Appeals of Kentucky.

June 11, 1912

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Harry Rumpf against the W. H. Neill Company. From a judgment for plaintiff, defendant appeals. Affirmed.

William Furlong, of Louisville, for appellant.

Edwards Ogden & Peak and James W. Garrison, all of Louisville, for appellee.

LASSING J.

W. H Neill Company is a private corporation, engaged in the mill supply business in the city of Louisville. It deals in bolts, pulleys, wheels, and all character of supplies used in the mill business. It is not a manufacturer, but simply a dealer. Its storeroom is situated on the north side of Main street, between Fifth and Sixth, and runs back to an alley. The store is lighted in the rear by a large window. Harry Rumpf was a teamster, in the employ of A. H. Figg, who conducts a teaming and transfer business in the city of Louisville. About July 15, 1910, the said W. H. Neill Company called upon Figg to haul a heavy drill press from its storeroom and deliver it to the purchaser. This press weighed 1,500 pounds, was about 2 feet square, and about 6 feet long. It was standing near the center of the storeroom near the rear end, near the alley, in an upright position. It became necessary to put the press upon its side, in order that it might be rolled out to the door and loaded. A crane, to which a block and tackle was attached, was used to assist in laying the drill press on its side. It seems that the employés about the place were not able to handle this press, and additional help was needed. The evidence shows that two outside men were called in, and Rumpf also assisted in lowering the press. In some way, while they were attempting to let it down upon its side, it fell, and in its fall caught and crushed Rumpf's hand. He sued the company for damages, alleging that his injury was due to the negligent manner in which the machinery, to wit, the crane used in lowering the press, was operated; and also that the boss in charge of the work of lowering it caused it to fall by improperly prizing it at the base. The plaintiff proceeded upon the idea that he was employed to assist in this work.

The defendant denied liability, and denied that it had employed the plaintiff, denied that it was under any duty or obligation to protect him, except to avoid injuring him after discovering his peril, and pleaded that the work of lowering this press on its side was so simple, plain, and obvious that any one of ordinary understanding and common experience in the handling of heavy articles of this character could not fail to see and know that, if it should fall, injury would necessarily result to those who failed to get out of its way.

The case was submitted to a jury upon the issue joined, with the result that plaintiff recovered a verdict for $1,200. Judgment having been rendered thereon, the defendant appeals, and seeks a reversal primarily upon the ground that the court erred in refusing to peremptorily instruct the jury to find for it at the conclusion of the evidence for the plaintiff.

The appellant's whole defense in this case is rested upon the theory that appellee was a volunteer, and, as such he assumed the risk, and is not entitled to recover anything because of the injury sustained under these circumstances.

Appellee insists, first, that he was not a volunteer, but that he was acting under the direction of the foreman, Frank, who had ample authority to employ such assistance as was necessary to carry on the business in which appellant was then engaged and that in the exercise of such authority he did employ appellee, or at least requested him to assist in the work, and that under these circumstances, if appellant failed to furnish him a reasonably safe place in which to work or reasonably safe and suitable appliances with which to work, and injury resulted because of such failure, appellant is liable. Appellant introduced no evidence whatever, but insists that the evidence of appellee showed that he was a volunteer. Appellee testifies as to his own connection with this work as follows: "Q. What did Frank say to you about helping, if anything? A. You mean after I got hurt? Q. No; before you got hurt. A. Oh, he just says, 'Go back there. You all hold it up a little bit.' *** Q. Who else did Frank ask to assist in getting the drill out? Who else was right there? A. There was Fahey and Kennedy and Muir and Sullivan and me. *** Q. What part of the work did you do, where were you standing? A. I was in the back. Q. Who placed you there? A. Frank. Q. Tell the jury what, if anything, Frank told you to do. A. Well, Frank told me, he says, 'You go over there by that machine on the corner.' When I got over there, they were already cranking and hoisting, and it got kind of twisted. They had to change the ropes the third time, and Frank got under there with a big crowbar, and gave it a turn, and it came right over on my hand. *** Q. When you got the drill press over, leaning something like I indicate by this book, what did Frank then do? A. He says, 'Wait a minute now.' He seen it was going to fall. Then they got around this way and stopped it. Q. When they stopped it what did Frank do? A. He took the crowbar and...