Williams v. Kentucky River Power Co.

• Citation: 179 Ky. 577
• Parties: Williams v. Kentucky River Power Company.
• Decision Date: 01 March 1918
• Court: Court of Appeals of Kentucky

Page 577

179 Ky. 577

Williams v. Kentucky River Power Company.

Court of Appeals of Kentucky.

Decided March 1, 1918.

Appeal from Perry Circuit Court.

H. C. EVERSOLE for appellant.

MORGAN & NUCKOLS for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SETTLE — Affirming.

In this action brought in the Perry circuit court the appellant, Toney Williams, sought to recover of the appellee, Kentucky River Power Company, damages for injuries sustained to his person, caused, as alleged in the petition, by the gross negligence of appellee's foreman; such negligence consisting, as further alleged, of the misconduct of the latter in requiring him to remove from a car and carry a distance of 65 or 75 feet green lumber too heavy for a single person to handle and the weight of which produced his injuries, known as double "inguinal hernia."

The answer of the appellee denied the negligence charged in the petition and alleged contributory negligence and assumption of risk on the part of appellant. The latter pleas were controverted of record, and upon the issues thus formed the case went to trial, resulting in a verdict for the appellee, returned by the jury in obedience to a peremptory instruction given by the court at the conclusion of the appellant's evidence. Appellant complains of the action of the court below in giving the peremptory instruction and refusing him a new trial; hence, this appeal from the judgment entered in conformity to the verdict.

It appears from the appellant's evidence that he and two other employees of the appellee were directed by its foreman, Yonkers, to remove from a car standing on a side track of the Louisville & Nashville Railroad, at Glomarr, the lumber in question, which consisted of boards or plank of green pine running in length from eight to sixteen feet, having a width of from eight to twelve inches and a thickness of from one to two inches. In removing the lumber from the car one of the employees stood in the car and passed it through the door, when it was taken in hand by appellant and the other employee, each carrying a plank at a time a distance of 65 or 75 feet and laying it in a pile.

The other two employees of the appellee assisting in the removal of the lumber were not introduced in appellant's behalf, and he alone testified as to the manner in which the lumber was unloaded and what occurred during the performance of that work. It appears from his testimony, however, that Yonkers, the foreman, was present when the unloading of the car began and much of the time until the work of unloading was completed. So we must look to appellant's testimony alone to ascertain what negligence, if any, the foreman was guilty of. The following excerpts from his testimony furnish the only evidence relied on to establish the negligence complained of:

"Q. How much lumber did you unload? A. A box car load of lumber; there was three of us, one inside threw it off and two, we moved it and placed it side by side. Q. Who was your boss? A. Mr. Yonkers, Sam Yongers. Q. Was he present? A. Yes, he was showing us what to do and telling us what to do. He told us where to place it and he went himself first. I told him it was a little too heavy. He says, `Well, I will take it up,' and he took one. Q. What did you say to him? A. I said it was a little too heavy. Both of us we told him that, I and Bradley, and he says, `I will pick it up,' and he took one and then we walked along and took one each, each time, just the way they come, heavy or whatever it was, — Light."

Appellant further testified that during the progress of the work of unloading and shortly after he began he felt the pains in the groin which were later discovered by him to have been caused by the hernia. He did not, however, complain of these pains to the foreman or his fellow employees and completed the work of unloading the lumber without any further complaint of the weight of the plank. Other witnesses introduced in appellant's behalf and who claim to have seen and worked the lumber after it was unloaded testified as to its green condition and some of them as to its weight, but none of these witnesses ventured the opinion that the weight of any of the plank was such as to render it too great for a single man to carry it, a single plank at a time, as was done by appellant, or to make it unsafe to anyone so carrying it. Two physicians who examined appellant a month after he was injured testified as to the character of the injuries, one of whom expressed the opinion that the hernia had existed for perhaps as much as a year, and the other that it was of recent occurrence. Upon their advice he obtained a truss which has since been worn by him. The physicians further testified that while appellant is capable of doing ordinary or light work, he cannot perform such labor as would require lifting or active muscular exertion. It also appears from the testimony of appellant that he continued in the service of appellee from January 1st, 1916, the date of his receiving the alleged injuries,...