York v. Rockcastle River Ry. Co.

• Decision Date: 01 June 1926
• Citation: 215 Ky. 11,284 S.W. 79
• Parties: YORK v. ROCKCASTLE RIVER RY. CO.
• Court: Kentucky Court of Appeals

284 S.W. 79

215 Ky. 11

YORK v. ROCKCASTLE RIVER RY. CO.

Court of Appeals of Kentucky.

June 1, 1926

Appeal from Circuit Court, Laurel County.

Action by Elden York against the Rockcastle River Railway Company. From judgment dismissing petition, plaintiff appeals. Affirmed.

Lewis Begley & Lewis, of London, for appellant.

L. C Little, of McKee, and H. C. Clay, of Danville, for appellee.

CLAY J.

The only question on this appeal is whether the petition was properly dismissed on demurrer.

The case is pleaded under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and, conceding that the facts stated are sufficient in that respect, it remains to determine whether the petition as amended states a cause of action. Briefly stated, the averments of the petition are these: Plaintiff was employed by defendant as a section hand and was at work on its track and roadbed. While at work under the orders and directions of its section foreman, the defendant, its agents and servants, negligently furnished plaintiff a dangerous, unsafe, and unfit hammer with which to drive heavy iron railroad spikes into the railroad ties for the purpose of holding and securing the rails, and was negligently and carelessly ordered by defendant's foreman, agents, and servants in charge of and directing the work to use said hammer for that purpose. Plaintiff did not know of the unsafe condition of the hammer, but the section foreman, knowing of its unsafe condition, directed plaintiff to continue the use thereof and stated that within a reasonable time he would furnish another hammer, but failed to do so. While exercising ordinary care for his own safety and while he was driving spikes on one side of the rail and his colaborer, Delbert Griffin, was driving spikes on the other side and just opposite plaintiff, the said Griffin while acting under the orders of defendant's section foreman carelessly and negligently given, and while attempting to assist plaintiff to straighten a spike which he was attempting to drive, carelessly and negligently struck with his own hammer the hammer with which plaintiff was working, thereby causing a piece of steel or other metal to fly off said hammer and strike plaintiff in the right eye with such force as to penetrate the eyeball and destroy the sight.

The allegations of the amended petition are, in substance, as follows: Before the injury complained of, plaintiff notified defendant's foreman that he believed that the hammer which he was then using was unsafe. Thereupon the foreman assured him that the hammer was not unsafe and ordered him to continue the work therewith, at the same time promising that he would within a few days furnish another and different hammer to plaintiff. Relying upon this promise, plaintiff continued to use the hammer until the injuries complained of occurred. After the assurances and promises thus given, and at a time when plaintiff was exercising ordinary care for his own safety, Delbert Griffin, a colaborer of plaintiff, while acting under the orders and directions of the foreman, and attempting to assist plaintiff in driving a spike, carelessly and negligently struck plaintiff's hammer with his own hammer with great force and violence, thereby causing a piece of steel or other metal to fly off plaintiff's hammer and strike plaintiff in the right eye, etc.

It is not claimed that the violation by the...