Elkhorn Mining Corp. v. Pitts , 179 Ky. 646 ( 1918 )

Opinion of the Court by

William Rogers Clay, Commissioner —

'Affirming.

This is a personal injury action in which, plaintiff, Samuel Pitts,'recovered of the defendant, Elkkurn Mining Corporation, a verdict and judgment for $500.00. The defendant appeals.

At the time of the accident, plaintiff was assisting the company’s foreman and two other employees in extending. a trolly wire.- New poles and cross arms had been erected and additional wire had been placed on the ground along the proposed extension. The mine was in operation and the old trolly wire on the line being extended was in. use and charged with 250 volts of electricity. That wire was tied in one end of a wooden insulator'about a foot in length. This insulator was attached to a turnbuckle, a contrivance for tightening the wire, and the turnbuckle was attached to the last pole. The insulator was a piece of Avood AATith an iron ring in each end and was used to break the current. When the additional wire was ready to be put up, Mosley, the foreman, loosened the turnbuckle from the end of the terminal pole and from the end of the insulator. lie then attached the neAv Avire to the end of the insulator and handed the insulator to plaintiff to hold until the other two employees could tie the wire to the next pole tAventy-five feet aAvay. Plaintiff says that the men jerked the wire and his hand slipped and came in contact Avitli the live Avire on the other end of the insulator. He did not know that the wire was charged and the foreman did not warn him of the danger. He further says that the insulator Avas not reasonably safe for the purpose for which it was being used because it had no guards on the end to prevent it from slipping through his hand. He also testified that in doing dangerous work like that in which he was engaged, the company should have,cut off the current by using the switch at the substation or by providing additional switches at the terminal pole. According to the evidence for the defendant, plaintiff Avas not only informed that the current was on, but the fact that the motors Avere running and the fan nearby was in operation, plainly indicated that such was the ease. It was also shown that the current could not be cut off at the sub-station without shutting down its mines.

It is the contention of the company that it was entitled to a peremptory instruction, not only on the ground that no negligence on its part was shoAvn, but on the further ground that plaintiff pleaded and proved that his hand was caused to come in contact Avith the live wire by the jerk given by his fellow employees. It appears, that plaintiff alleged not only that the insulator was defective, but that the company was negligent in not releasing the voltage from the live wire. We. are not prepared to say as a matter of law that the company performed its whole duty by furnishing the insulator which plaintiff Was directed to hold. In attaching and tightening the wire it was liable to be pulled or jerked, and if the insulator was not guarded, even a slight jerk might be sufficient to cause the hand of the person holding it to slip and come in contact with the live wire. In view therefore of' the dangerous instrumentality which plaintiff was required to handle, we conclude that plaintiff’s evidence to the effect that the insulator should have been protected by guards, or the current should have been released from the live wire was sufficient to make it a question for the jury whether the company used the utmost degree of care to provide plaintiff with safe appliances for work. This conclusion disposes of the further contention that a peremptory should have gone, because the accident was caused by the negligence of plaintiff’s fellow servants. It is only where the injury is caused solely by the negligence of a fellow servant that the mastór is exempt from liability. If the injury be due to the concurrent negligence of the master and a fellow servant, the master is liable. Kentucky & I. Bridge Co. v. Sydnor, 119 Ky. 18, 82 S. W. 989, 68 L. R. A. 183; Bell-Knox Coal Company v. Gregory, 152 Ky. 415, 153 S. W. 465; A. Benster & Sons v. Bryant, 148 Ky. 634, 147 S. W. 402; Fluehart Collieries Co. v. Weeks, 160 Ky. 127, 169 S. W. 686; Siegel, Cooper & Company v. Frank Trcka, 218 Ill. 559, 75 N. E. 1053, 2 L. R. A. (N. S.) 647. Here the jerk given the wire by plaintiff’s fellow servants would not have caused plaintiff’s injuries if the insulator had been properly guarded or the current had been released from the live wire. If therefore it was a question for the jury whether • the company was negligent, it was likewise a question for the'jury whetherffhe company’s negligence was one of the concurring causes of plaintiff’s injuries. Hamel v. Newmarket Mfg. Company, 73 N. H. 386, 62 Atl. 592.

While the instructions are complained of, we conclude that on the whole they fairly presented the law of the case.

Complaint is also made of the court’s refusal to require plaintiff to give bond for costs on the ground of non-residence. In reply to this contention it is sufficient to say that .we see no reason to disturb the court’s finding that plaintiff was a resident of Kentucky.

Judgment affirmed.