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1907, so that no conviction under it could be passed 10 years later made the killing or sustained.
wounding of any fish by the use of dynamite [Ed. Note. For other cases, see Fish, Cent. I a misdemeanor. May both acts stand, or Dig. 88 17, 18; Dec. Dig. 9.]
was the earlier impliedly repealed by the Appeal from Circuit Court, Monroe Coun- later act? ty; S. C. Brown, Judge.
As noted, the act of 1907 prescribed a comBert Bivens was convicted of dynamiting prehensive system for the protection of fish, a stream inhabited by fish, and he appeals. inclusive of the protection thereof from beReversed.
ing killed by dynamite. If both acts stand, J. D. Penland, of Madisonville, and E. E. we have the anomalous condition that for Ivins, of Athens, for appellant. The As
the explosion of dynamite that does not efsistant Attorney General, for the State.
fect the death or wounding of fish a punish
ment for a felony is prescribed, whereas for WILLIAMS, J. The plaintiff in error was
a consummation of such attempt by an actried and convicted under a presentment for tual killing or wounding of fish a punishment
We candynamiting a stream inhabited by fish, which for a misdemeanor is stipulated. presentment was under and closely followed not impute such a result as one purposed by the language of Act 1897, c. 57, which the Legislature. Rather does it seem that
. provided that it shall be unlawful for any by the later act, outlining a general and person to use, procure, cause or assist in amplified system, the entire subject was inprocuring the explosion of any dynamite or
tended to be covered, with result that the any other explosive material whatever in any
earlier statute was repealed by implication.
We so hold. stream, lake or pond in this state. The second section of that act made its
The presentment not being under the act violation a felony punishable by imprison
of 1907, or for the killing or wounding of ment in the penitentiary for not less than fish, the result is that a conviction cannot
be sustained by us. The presentment chargone year, or more than three years.
The jury found the accused guilty, but his ed nothing denounced as an offense by any punishment was in the judgment fixed to be existing statute.
Reversed. a fine of $200, and imprisonment in jail for six months. This punishment was evidently meant to be that provided for by a later act now to be outlined.
STANDARD KNITTING MILLS V. HICKThe General Assembly, by Act 1907, c.
MAN. 489, p. 1649, enacted a comprehensive stat- (Supreme Court of Tennessee. Oct. 30, 1915.) ute for the protection and preservation of 1. MASTER AND SERVANT Om 155—LIABILITY fish in this state, section 2 of which, in sub- FOR INJURIES-FAILURE TO WARRANT. stance, provided: That it shall be unlawful An employé, working on a mangle, as she for any person to kill or wound any fish in worked to go back of the machine, slipped on
stepped down from the platform on which she any of the streams, lakes, rivers or ponds in a place where a scrubwoman had just put soapy this state by dynamite, giant powder, etc. ; water. Though she had worked on the mangle and declaring a violation to be a misdemean only a few hours, it, and the floor about it, were
in view of her accustomed working place, and or, and, providing that upon conviction, a she knew that the scrubwoman mopped the floor fine of $200 and imprisonment of not less about twice a week, and knew also the route than six months nor more than one year taken by the scrubwoman as she passed the manshould be the punishment.
gle. Her attention had been directed to the ma
chine, which was so hot that it would burn one's In this court, the able Assistant Attorney hand, but on leaving the machine she had nothGeneral insists that, while this judgment, as ing, to do but keep away from the machine. to the punishment, was erroneous, it may and obvious that it was not incumbent on the
Held, that the danger of slipping was so simple and should be corrected in this court by the employer to warn her of the danger, and it was entry of a judgment here calling for the immaterial that she had been absorbed in her punishment fixed by the act of 1897—impris- work, as she was relieved of this tension when onment for not less than one year in the she stepped down and away.
[Ed. Note.-For other cases, see Master and penitentiary. This is resisted by counsel for plaintiff in 2. MASTER AND SERVANT Cw185—LIABILITY
Servant, Cent. Dig. § 310; Dec. Dig. Om 155.]
Om — error, who insist that their client was pre
FOR INJURIES-UNSAFE "PLACE” TO WORK. sented for a violation of the earlier act, spe- The word "place,” within the rule requircifically, and not for killing or wounding ing an employer to furnish a safe place of work, fish, that the act of 1907 operated to repeal ises, where the work is done, and does not com
means the premises, or some part of the premthat act by implication, and that the pre-prehend mere negligent acts of fellow servants sentment cannot be referred to the later act. rendering the place dangerous for the time beTherefore, it is urged, no conviction of the ing, as by way of some transient peril. accused can be upheld.
[Ed. Note. For other cases, see Master and
Servant, Cent. Dig. $S 335-421; Dec. Dig. Om It does appear that the act of 1897 made 185. the use by explosion of dynamite in any For other definitions, see Words and Phrases, stream of water a felony, while the statute | First and Second Series, Place.]
Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Appeal from Circuit Court, Knox County ; reached by going from plaintiff's standing Von A. Huffaker, Judge.
place around the other end where the floor is Action by Jessie Hickman against the not shown to have been wet at the time, Standard Knitting Mills. A judgment for though the usual route was the one taken by plaintiff was affirmed by the Court of Civil plaintiff. The scrubwoman was yet at work Appeals, and defendant appeals. Reversed, near the machine when plaintiff fell, and and motion for peremptory instructions sus- while not right at the spot, she was at plaintained.
tiff's side at that end of the mangle; she Maynard & Lee and Jourolmon & Welcker, had not gone away and left the soapy waall of Knoxville, for appellant. Harris &
ter on the floor. Beeler, of Knoxville, for appellee.
The theory of plaintiff for a recovery is
that the place of work was unexpectedly WILLIAMS, J.
made dangerous, and that she, without ex Jessie Hickman, a
perience at that place of work, was given no young woman aged 18 years, was engaged in warning of the dangerous situation. running a mangle or ironing machine in the
The Court of Civil Appeals sustained this mill of plaintiff in error, at the time she was
theory. We are asked to review its judginjured. Her duties were to put unfinished underwear between heated rollers in the ma- for a directed verdict of nonliability on the
ment and to rule that the facts made a case chine, and after a dozen garments were so
part of the employer. placed, her duty was to go behind the ma
In our opinion the trial judge and that chine, collect the ironed garments that had passed through, and place them where they court should have sustained the motion for were to be further worked on by other em
such peremptory instructions, on the ground ployés.
that the danger was so simple and obvious as While engaged in feeding the garments in that the employé could, at a glance, observe the machine, she stood fronting the machine and comprehend for herself, and so obvious on a platform, which was about 4 or 5 inches as that it was not incumbent on the employabove the floor level, from which she stepped er to give her warning. Plaintiff knew that to the floor in going to the rear of the ma- the floors were cleaned by mopping them chine.
with soapy water at intervals, and also the The usual place of work of the employé direction the colored woman took, in doing had been at a table, folding the finished gar- so, as the latter passed the machine in ques
tion. iments for boxing, but in the same room where the mangle stood. She had been
In the case of Ferguson v. Phoenix Cotton changed to the mangle at the commencement Mills, 106 Tenn. 236, 61 S. W. 53, the plainof work at 7 o'clock in the morning, before tiff employé complained of an injury caused the injury at 12:45 in the afternoon.
She by a hole in the floor at his working place, had had no previous experience at the man- where he had been employed only five days. gle, save a few minutes on two previous oc- The court held that any such danger was obcasions. The mangle and the floor about it vious; and, denying the right to recover, were, however, in view of her accustomed said: working place.
“It was not incumbent on the defendant to About twice a week a scrubwoman cus- prove that the plaintiff had knowledge of a de
fect which was plain and obvious. * * * It tomarily mopped the floor of the room to re- does not require experience to see a hole in the move oil and dirt; that she did so was floor, and as these were necessary for the drainknown to the plaintiff employé, who knew age of the floor, it was one of the risks also the route taken by the scrubwoman as experience was not an element to be considered
assumed, and was so simple and obvious that she passed the mangle.
in determining the question of liability, nor was The plaintiff, after putting through the ma- it such as was incumbent on the defendant to inchine a dozen garments just after the noon
struct about.” hour, stepped down from the platform to go See, also, Brewer v. Tennessee Coal, etc., back of the machine, when she slipped on the Co., 97 Tenn. 615, 37 S. W. 549; 3 Labatt, floor at a place where the scrubwoman had Master & Servant (2d Ed.) $$ 1000, 1144, citjust put soapy water, and received the in- ing Ferguson v. Phønix Cotton Mills, supra; juries for which this suit was brought. Cudahy Packing Co. v. Marcan, 106 Fed. 645,
She testifies that no one had warned her, 45 C. C. A. 515, 54 L. R. A. 258; Omaha and that she did not look to see, nor did Packing Co. v. Sanduski, 155 Fed. 897, 84 she know, that the water was standing where c. C. A. 89, 19 L. R. A. (N. S.) 355 ; Kline v. she stepped ; that while the floor was being Abraham, 178 N. Y. 377, 70 N. E. 923. mopped by the scrubwoman plaintiff had her In Thompson V. Norman Paper Co., 169 attention directed to the machine, which was Mass. 416, 48 N. E. 757, it appeared that a so hot that it would burn one's hand if touch- beam on which the plaintiff employé slipped ed against its metal rollers. When she got and fell was wet, and had been made more off of the platform she “had nothing to do slippery by the placing thereon of soda ash, but to keep away from the machine, and was which was used for cleaning purposes. The not bothered for lack of light."
common use of soda ash in the mill was testimony he did not know it had been used lieved of tension when she stepped down and in the particular place. The negligence aver-away. As plaintiff herself phrased it: “I red was in the failure to warn the plaintiff had nothing to do but to keep away from the that the soda ash had been so used. The machine." She was just leaving the place court held that the case should have been tak- that was ordinarily dangerous, and she was en from the jury, saying:
not injured by the rolls of the mangle. "Plainly it would have been unreasonable to
Moreover, it would seem that if such were require his employers to have some one at hand not the normal (or, to reverse the phrase, not to notify him that the beam was wet, and that the fairly fixed abnormal) condition of the soda ash had been used. * * * The superintendent was warranted in assuming that the floor, but that the slipperiness was caused by plaintiff would use his eyes, and in supposing the neglect of the scrubwoman, this was the that he would know that soda ash might have fault of a fellow servant, and the plaintiff been employed.”
cannot recover. Murphy V. American RubSee, also, Kleinest v. Kunhardt, 160 Mass. ber Co., 159 Mass. 266, 34 N. E. 268; Omaha 230, 35 N. E. 458.
Packing Co. v. Sanduski, supra. In accord with the above is the case of  The defect was no more a structural Goudie v. Foster, 202 Mass. 226, 88 N. E. one than would have been a negligent leav663, applying the rule to a laundry floor made ing on the floor of her mop by the scrubwoslippery by an accumulation of starch satu- man. The theory of plaintiff is based upon rated with water. The plaintiff was held a misconception or confusion of terms. The to have assumed the risk of a slippery floor. word "place," within the meaning of the
In Hattaway V. Atlanta Steel, etc., Co., rule that requires an employer to furnish a 155 Ind. 507, 58 N. E. 718, a floor was made same place of work, means the premises, or slippery by oil being spilled thereon, over some part of the premises, where the work which sawdust was thrown to absorb the oil, is done, and does not comprehend mere negand the plaintiff knew of the practice. Plain- ligent acts of the fellow servants that rentiff was injured by slipping thereon while der the place dangerous for the time being, using the floor in the prosecution of his as, for example, by way of some transient work; but the court held the employer. not peril. Southern Indiana R. Co. v. Harrell, liable, on the ground that the condition was 161 Ind. 689, 68 N. E. 262, 63 L. R. A. 460; fully exposed to view and the risk an ob- Herman v. Port Blakely Mill Co. (D. C.) 71 vious one.
Fed. 853; Haskell, etc., Co. v. PrzezdzianThe plaintiff's attitude for a recovery is kowski, 170 Ind. 1, 83.N. E. 626, 14 L. R. A. not changed by reason of any absorption in (N. S.) 972, 127 Am. St. Rep. 352; 3 Words or a diverting of her attention to any dan- and Phrases, Second Series, 1038. gers about her. The danger was that of For failure to sustain the motion for perhaving a hand burned by or caught between emptory instructions interposed by the dethe rollers of the mangle, and that absorbed fendant, the judgment of the Court of Civil the plaintiff only while she stood placing the Appeals is reversed. Judgment here susgarments between the rollers. She was re- taining that motion.
such close and dangerous proximity to its CUMBERLAND TELEPHONE & TELE- heavily charged electric wires as to cause GRAPH CO. v. MAYFIELD WA
said telephone wire, to come in contact thereTER & LIGHT CO.
with and thereby transmit the current of (Court of Appeals of Kentucky. Oct. 27, 1915.) electricity through the telephone wire which CONTRIBUTION C5-JOINT TORT-FEASORS— resulted in Magness' death, and that said RIGHT TO CONTRIBUTION.
negligent act of the telephone .company was Through the negligence of an electric company
in allowing the insulation to wear off of the direct, proximate, and efficient cause of one of its wires, and that of a telephone com- Magness' death. pany in stringing its wires too low, a connection between the light wire and the telephone gence against the water and light company
In the original action the charge of negliwire was formed, resulting in the death of a telephone lineman, whose administratrix recov- was that at the point where they came in conered from the light company. Held, that the tact with the telephone wire the electric negligence of both was concurrent, and the light wires were not sufficiently or at all insulated, company could not enforce contribution against and that the insulation thereon was old and the telephone company.
[Ed. Note.--For other cases, see Contribution, worn off, and that it had negligently failed Cent. Dig. 88 6-9; Dec. Dig. Om5.]
to repair the same. The judgment of the Appeal from Circuit Court, Graves County. circuit court in the damage action against the
Action by the Mayfield Water & Light Com- water and light company must be deemed pany against the Cumberland Telephone & conclusive of its negligence in this respect; Telegraph Company. From a judgment for so that we have a plaintiff confessing its plaintiff, defendant appeals. Reversed. negligence which contributed to bring about Wheeler & Hughes, of Paducah, and Brutus of a defendant whose concurrent negligence
the death of a citizen demanding indemnity J. Clay, of Atlanta, Ga., for appellant. Stan
also contributed to that event. The only field & Stanfield, of Mayfield, for appellee.
question necessary to determine upon this TURNER, J. In May, 1912, Lemuel Mag-appeal is whether the demurrer to the plain
tiff's petition should have been sustained. ess, an employé of the Cumberland Telephone & Telegraph Company, was killed in
We have here one party conclusively shown Mayfield, Ky., by an electric current trans- to have been negligent, by the judgment of mitted to the wire of the telephone company the court, in failing to have its electric wires from the wires of the Mayfield Water & Light insulated, and another party shown to have Company; the latter being a corporation en- been negligent in placing its telephone wire gaged in furnishing electricity to the citizens in dangerous proximity to the heavily chargof that place. His personal representative ed electric wires, and it is apparent that instituted an action against the two compa- their concurrent acts of negligence, each sepanies jointly, wherein it was alleged that he rate and distinct from the other, brought came to his death by reason of certain joint about the death of Magness. If the electric concurrent negligence upon the part of said wires had been properly insulated, the contwo corporations. The defendants in that tact of the telephone wire with them would action filed separate answers, and, the issues not have transmitted the electric current, and being completed, a trial was had which re- Magness would not hąve been killed. On the sulted in a directed verdict for the telephone other hand, if the telephone wire had not company and a judgment and verdict for the been carelessly strung so near to the electric plaintiff against the water and light company. wires that it might come in contact with The plaintiff therein appealed from the ac- them, Magness would not have been killed. tion of the court in directing a verdict for the The separate acts of negligence of neither of telephone company, and the judgment was the defendants would have brought about this affirmed upon the ground that Magness had, result, but their two separate and distinct as an employé of the telephone company, as- acts of negligence, concurring one with the sumed the risk of which he had full notice. other, at the time and place, did bring it Magness' Administratrix v. Cumberland Tel. about. & Tel. Co., 156 Ky. 330, 160 S. W. 1061.
The appellee, of course, recognizes the genThe water and light company accepted the eral rule that there can be no indemnity beverdict and judgment in the circuit court tween tort-feasors, but bases its right of reagainst it and satisfied the same, and there- covery upon an exception to that rule which after brought this action against the tele- has been recognized in this state. The case phone company for indemnity by reason of of Blocker v. City of Owensboro, etc., 129 Ky. the payment thereof.
75, 110 S. W. 369, 33 Ky. Law Rep. 478, The substance of the petition is that for was where in the erection of a building cermany years prior to 1912 the plaintiff had tain obstructions were permitted to remain maintained its poles and wires on Seventh on the sidewalk by the owner of the building street, in Mayfield, and that some time before which resulted in an injury to a pedestrian, 1912 the defendant had negligently and care- and it was held that, although the person inlessly strung one of its telephone wires lead- jured by the obstruction in the street might ing into the residence of one Stephenson in recover against the city alone, or against both the city and the person who placed the ob- | That being true, when either appeals to the pubstruction there, yet as between the wrongdo- lic, through its courts, for redress against the ers the city might, after satisfying the judg- other, it will be denied, and they will be left ment, be entitled to indemnity from the per- courts will not be put in motion to relieve one son who placed the obstruction in the street. wrongdoer from the consequences of his wrongIn City of Georgetown v. Groff, 136 Ky. 662, No citizen has a right to invoke the aid of
ful act against another wrongdoer equally guilty. 124 S. W. 888, the same principle is laid the courts for redress when it is necessary for down.
him in stating his complaint to say that he and In Pullman Company v. C., N. O. & T. P. another, by reason of a breach of public duty Ry. Co., 147 Ky. 498, 144 S. W. 385, a brake jury or death to another citizen; and it matters
upon the part of each of them, have caused 'inman of the railway company was injured by not that their several breaches were separate reason of a defective brake staff on a car and distinct from each other, and that neither which had been constructed for it by the breach of the other, if the two breaches concurPullman Company, the defective brake staff red to bring about the result.” being painted over. The brakeman recovered
The recent case of Owensboro Ry. Co. V. a judgment against the railway company, and L. H. & St. L. Ry. Co., 165 Ky. 683, 178 S. it brought suit, after paying the judgment, W. 1043, was an action by the railroad comagainst the Pullman Company for indemnity; pany against the city railway company the court there permitting a recovery because for indemnity or contribution because the Pullman Company was primarily negli- of a judgment rendered against the railroad gent and created the danger and painted over company in favor of one who had been inthe defective brake staff, so that the defect jured by a live wire which a train of the could not be easily discovered by inspection. railroad company had run into and caused In all of these cases it will be observed
to fall. In the action for the injury the that the primary and efficient cause of the negligence alleged against the street car cominjury was the negligence of one party, and pany was that it allowed this wire to swing that the other party was held liable to the so low as to render it unsafe and dangerous, injured party for negligence of a lesser de- and the negligence alleged against the railgree and of a different character. In those road company was that it ran its train cases there was no concurrent negligence of against this live wire and broke it when it equal degree, and the distinction between knew it was sagging low and in a dangerous them and cases of this character was pointed condition. The court in that case went fully out by the court in the last-named case, into the authorities on the subject, and held wherein it said:
that their negligence was concurrent, and “This was not a case of concurrent negli- that there could be no contribution between gence by two wrongdoers. The negligence of the railroad company consisted simply in its them, following the rule laid down in City failure to discover the prior negligence of the of Louisville. v. Louisville Ry. Co., supra. Pullman Company. The railroad company did
In the case at bar it cannot be said that for the purpose for which it was intended. In the primary negligence or the efficient cause Union Stockyards Company v. C., B. & Q. R. is chargeable more to one than to the other. R. Co., 196 U. S. 217 [25 Sup. Ct. 226, 49 L. Their separate negligent acts concurred to Ed. 453, 2 Ann. Cas. 525), neither company had bring about the death of Magness, and withcreated the danger. Each was alike negligent in inspection. In that case it could not be said out the negligence of either the negligence of that the defendant's negligence was primarily the other would not have had that result. the cause of the trouble. The same is true of
Under such circumstances there can be no the other cases relied on by appellant."
recovery, and the demurrer to the petition The facts of this case bring it within the should have been sustained. rule laid down in City of Louisville v. Louis- The judgment is reversed for further proville Ry. Co., 156 Ky. 141, 160 S. W. 771, 49ceedings consistent herewith. L. R. A. (N. S.) 350. That was a case in which a man driving along a street of Louisville in a wagon ran into a hole in the street and
RUTLEDGE et al. v. WIGGINGTON et al. was thrown out of the wagon onto an adjacent railway track where a street car ran (Court of Appeals of Kentucky. Oct. 26, 1915.) over and killed him. A judgment was en-1. WILLS Ow70 - VALIDITY - LAW GOVERN
ING. tered for damages against the city, and it The validity of a will, as to personal propinstituted its action against the railway com-erty, is determined by the law of the testator's pany for contribution upon the ground that domicile at the time of his death, and, as to they were each equally negligent, and their real property, by the law of the jurisdiction
wherein it is situated. concurrent negligence had caused the man's
[Ed. Note. For other cases, see Wills, Cent. death. After a review of the authorities, this Dig. S$ 184-186; Dec. Dig. 70.] court, in denying a recovery to the city, said: 2. WILLS 115, 132_VALIDITY-ATTESTA
“The negligent act of each was the violation TION. of a duty it owed to the public. Operating con- Under Ky. St. 1909, § 4828, providing that, currently, the two negligent acts brought about if a will is not wholly written by the testator, the result. They were each equally remiss in the subscription shall be made, or the will acthe performance of their duties to the public. I knowledged, by him in the presence of at least