Dotson v. Delorme Lumber Co. , 159 Ky. 796 ( 1914 )

Opinion of the. Court by

Judge Nunn

— Affirming.

The appellant, Dotson, sued to recover of appellee, Lumber Company, $5,000 for personal injury, which he claims was inflicted upon him through the negligence of the Lumber Company. On the .first trial he recovered $500 damages. On motion of appellee, the lower court set aside the verdict. On the next trial at the conclusion of appellant’s testimony, tbe lower court peremptorily instructed tbe jury to find against bim. Complaint is made of the lower court in setting aside tbe verdict on tbe first trial, as well as in giving tbe peremptory instruction on tbe second. A complete record of tbe first trial is not before us. In fact, tbe appeal is taken only from the judgment of tbe lower court based on tbe directed verdict. Therefore, tbe only question for us to consider is whether there was any evidence to establish negligence on tbe part of tbe Lumber Company as tbe cause of Dotson’s injuries.

The business of tbe Lumber Company was saw-milling in Laurel County. It bad men employed in tbe woods felling trees, cutting tbe trees into saw-lengths, dragging or rolling logs from tbe place on tbe bill or mountain side to roadways in tbe valley, and from thence they were trammed or hauled to tbe mill. Dotson was about 24 years old, and bad been in tbe employ of tbe Lumber Company for six months at least. For part of tbe time bis duties were in and about tbe mill. At other times, be was engaged in tbe woods and on tbe haulways. He swears that be bad never performed any of tbe duties in which be was engaged at tbe time of the accident until that very day, with tbe inference that be was, therefore, ignorant of tbe dangers incident to them. He also swears be received no instructions from the foreman in charge of tbe crew in tbe woods with which be was engaged on this day. His duty at tbe time was to scalp, bark, and trim tbe logs after one crew bad felled the tree, and another bad cut tbe tree into saw-logs. In other words, be chopped off tbe limbs from tbe saw-logs — got tbe logs into condition so that they might be rolled down tbe hillside to tbe roadway. He bad trimmed up tbe log in question and thought be bad cut off all of the limbs. He then stood on the upper side of it, and, with a canthook caught under it, started it rolling down'tbe bill. There was a limb on tbe under side concealed by tbe leaves in a bole or depression under tbe log. This limb be did not cut off because be says be did not see it, or know it was there. When tbe log turned, tbe limb caught him between tbe legs, threw bim over, and in front of it. The log rolled over bim and broke both legs. From this injury it is shown that he will be a cripple for life.

For recovery, it is alleged that the Lumber Company did not provide him a safe place to work, in that it negligently felled the tree straight across the hill, that is, at right angles to the slope of it, instead of down the hill or “angling” down the hill. There is some evidence to show that it was negligence to fell the tree as was done in this case. The idea being, no doubt, that with the tree lying straight across the slope of the hill, the logs when cut by the sawyers, would roll out of place and down the hill more rapidly, to the increased danger of anyone working on the lower side. On the other hand, it is shown that if the tree is felled down the hill, the top or lap will be in the way of rolling the log to the road below.

If the position of the log had been the cause of the accident, the appellant might be heard to argue that the court erred in giving a peremptory instruction against him. But neither the position'-'Of the tree on the hillside nor the steepness of the slope had anything to do with the accident. No matter how steep the hill was, the log did not get away from anyone, for it was practically secure until the appellant with a canthook started it in motion. He was not injured by being at work on the lower side of it. It was his duty, and he had, as he thought, completely trimmed and prepared the log so that he might start it rolling down the hill. He was on the upper side of it. His injury was due to a limb concealed under the log, which he had not removed although it was a part of his duty to remove it. Perceiving no proof of any negligence on the part of the Lumber Company which in anywise caused or contributed to appellant’s injury, we are of the opinion that the lower court properly directed a verdict against him.

The judgment is, therefore, affirmed.