3. Master and servant 217 (28)-Risk of | pain in his groin and in his right side. He lifting rail assumed by section hand. Section hand, who overstrained himself and suffered a hernia in lifting rail, after having lifted other rails and with full knowledge of the weight thereof, assumed the risk, and could not recover, even though he did not anticipate the particular consequences that resulted. Appeal from Circuit Court, Bell County. Action by George Cox against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions. B. D. Warfield, of Louisville, and William Low, of Pineville, for appellant. N. J. Weller, of Pineville, for appellee. CLAY, J. Claiming that, while engaged in lifting steel rails for the Louisville & Nashville Railroad Company, he suffered a hernia, which was due to the negligence of the company in failing to furnish a sufficient force to do the work, plaintiff, George Cox, brought suit against the Director General of Railroads to recover damages. From a verdict and judgment in his favor for $1,000, the defendant appeals. was engaged in lifting when he experienced the pain, and the pain continued to grow worse, but he finished his day's work. Later on it developed that he was suffering from a hernia. The foreman was not present at the time he was injured, and the subforeman assisted the other men in doing the work. Neither he nor any of the men complained of the fact that the work was too heavy, nor did he complain to those present of the injury which he had received. John Hendrickson, who was a member of the crew and acted as assistant foreman in the absence of the foreman, had worked for the Louisville & Nashville railroad for 15 or 16 years. The rails they were handling were old steel rails, some being 33 feet and weigh 770 pounds, but old rails weigh less. In his opinion the seven men he had at others less than that. New 33-foot rails work were not sufficient to handle the rails with safety. There should have been eight or ten for safety. He could hardly say what was the usual force for doing that work. Sometimes they used more and sometimes less force. He had seen rails loaded with less force. Hamp Peace, a member of the crew, testified that in lifting the rails, four at one end and three at the other, it required at one end and three at the other, it required pretty stiff lifting and was about all that he could go with. In describing the character of the work, Will Bustle, another member of the crew, said: "It took hard lifting all around. It is straining work. Any one knows that." He further stated that pushing the cars after the rails were loaded was pretty heavy work. The facts are as follows: Plaintiff was 50 years of age and was working for the company as a section hand. Though he had worked in that capacity at various intervals for a number of years, he had been employed only a few days when the accident occurred. On the morning of the day the accident occurred, the foreman directed the section crew to load on push cars a quantity of steel rails that were lying on the ground strung along the track. After the cars were loaded, the men pushed them to Colmar, a distance of about 2 miles, where the rails were unloaded. The crew consisted of eight men, besides the foreman. Seven men were engaged in loading the rails and shoving the trucks, four men being at one end, and three, including the plaintiff, being at the other end. The plaintiff took his position voluntarily, because it was impossible to divide the men equally. The eighth man was out flagging. The foreman was at Colmar most of the time, where he assisted in unloading and measuring the rails. Plaintiff weighed about 160 pounds. He knew nothing of the length or the width of the rails. He says that some of the rails were partly buried, from 2 to 3 feet be low the grade of the railroad track, and that the beds of the trucks on which the rails were laid were about 2 feet above the track. For a portion of the way they had to carry the rails up hill. It required stiff lifting to get the rails up, and several times he lifted all he could pack and go along with it. [2] Correctly stated, the rule is that the While he worked between Cross and Colmar, servant never assumes risks growing out of he felt some effects from the lifting, but could the master's negligence unless he knows of not say what time in the day it was. When the failure of duty and consequent danger, he commenced hurting, he experienced a keen or the failure of and the danger therefrom [1] It is the settled rule in this state that a servant is the best judge of his own physical strength, and the duty is on him not to overtax it. Therefore, if he misconceives the amount of strength required to accomplish a task and overstrains himself, the master is not liable. Sandy Valley & Elkhorn Ry. Co. v. Tackitt, 167 Ky. 756, 181 S. W. 349, L. R. A. 1916D, 445; Central Ky. Gas Co. v. Cantrell, 183 Ky. 291, 209 S. W. 1. However, it is insisted that the rule is not applicable to the facts of this case, because there was evidence that the master had furnished an insufficient force to do the work, and, that being true, plaintiff did not assume the risk as it was caused by the master's negligence. It is sometimes said that a servant never assumes risks arising from the master's negligence, but this statement of the rule is entirely too broad. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) testimony at the trial was untrue; the proper proceeding in such case being a criminal proceeding against the witness for perjury. are so obvious that an ordinarily prudent quently to the trial signed an affidavit that his 'person in his situation would have observed the one and appreciated the other. Carter Coal Co. v. Howard, 169 Ky. 87, 183 S. W. 244; Chesapeake & O. Ry. Co. v. De Atley, 159 Ky. 687, 167 S. W. 933; Chesapeake & O. Ry. Co. v. De Atley, 241 U. S. 310, 36 Sup. Ct. 564, 60 L. Ed. 1016. It will be ob served that this is not a case where the rail slipped and fell because the force was insufficient to carry it. Illinois C. R. Co. v. Langan, 116 Ky. 318, 76 S. W. 32, 25 Ky. Law Rep. 500. Nor is it a case where the plaintiff was suddenly subjected to an unexpected strain. L. & N. R. R. Co. v. Mahan, 113 S. W. 887. [3] Though plaintiff did not know exactly when he received the injury, he did know where he was at the time, and his evidence shows that he was some distance from the place where the loading was being done. It is clear, therefore, that he and the other men had loaded several rails before the injury was received. Though he says that he did not know of the danger, he admits that he knew it was heavy lifting and was about all that he and the other men could do. While appreciation of the danger is an essential element in the assumption of risk, it is not necessary in a case of this kind that the servant should anticipate the particular consequences that actually result; but the rule applies if he knows, or it is plainly obvious to a person of ordinary prudence in his situation, that because of the lack of a larger force, he is being subjected to a severe strain and nevertheless continues the work. Where these circumstances prevail, the case is simply one where the servant knowingly overstrains himself, and cannot be distinguished in principle from cases where the servant is working alone. Stenvog v. Minnesota Transfer R. Co., 108 Minn. 199, 121 N. W. 903, 25 L. R. A. (N. S.) 362, 17 Ann. Cas. 240; Manore v. Kilgore-Peteler Co., 107 Minn. 347, 120 N. W. 340; Haywood v. Galveston H. & S. A. R. Co., 38 Tex. Civ. App. 101, 85 S. W. 433; Texas & P. R. Co. v. Miller, 36 Tex. Civ. App. 240, 81 S. W. 535. It follows that defendant's motion for a peremptory instruction should have been sustained. Judgment reversed, and cause remanded for new trial consistent with this opinion. (192 Ky. 262) RUSSELL v. FIELD, Circuit Judge. (Court of Appeals of Kentucky. June 24, 1921.) Petition by William Russell for writ of prohibition against William H. Field, Judge of the Jefferson Circuit Court, Common Pleas Branch, First Division. Writ granted. Grover G. Sales and Bruce & Bullitt, all of Louisville, for petitioner. Allan P. Dodd and Wm. S. Kammerer, both of Louisville, for defendant. SETTLE, J. William Russell, the petitioner, was a witness in the case of the Kentucky Nursery Company v. Ben H. Wilson, in the common pleas branch, First division, of the H. Field, judge. Russell after the trial signJefferson circuit court, tried before Hon. Wm. ed an affidavit substantially in effect that his testimony given on the trial was untrue and that he knew nothing about the facts of the case. This affidavit was filed on the motion for new trial. Judge Field then issued a rule against Russell to show cause why he should not be punished for a contempt of court in giving false testimony on the trial or in the affidavit. Russell filed a special or in the affidavit. demurrer to the jurisdiction of the court, and also a response to the rule, in which he stated that the 'affidavit was obtained by coercion, threats, and intimidation, and was untrue; that his testimony on the trial was true. Russell then filed his petition in this court, asking a writ of prohibition under section 110 of the Constitution, restraining the judge of the circuit court from proceeding further with the rule on the ground that the court was without jurisdicton in this way to try the question of fact raised by his response to the rule. The case is on all fours with Riley v. Wallace, Judge, 188 Ky. 471, 222 S. W. 1085, 11 A. L. R. 337, in which on substantially like facts this court said: "We only hold that the facts shown in the record before us do not present a case justifying the procedure adopted; the chancellor could not judicially know the petitioners were guilty as charged. If the petitioners are thought to be guilty that is a matter that should receive the consideration of the officers of the criminal court, and due notice of the facts should be brought to their attention for such action as may be deemed advisable." 99 We cannot see that it makes any difference that the affidavit was filed in the court where the testimony was given. The same thing occurs when the testimony of a witness on the trial conflicts with a deposition previously given or with other portions of his testiIn all these cases the Contempt 40-Court has no jurisdiction to mony on the trial. punish for contempt witness who admits giv-remedy lies in the criminal courts to punish ing false testimony. for perjury. The trial court has no jurisdiction to pun The motion for the writ is sustained, and ish for contempt of court a witness who subse-writ granted. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (192 Ky. 176) In the course of the reconstruction work un MATTINGLY'S ADM'R v. HINES, Director dertaken by the Alfred Struck Company it General, et al. (Court of Appeals of Kentucky. June 24, 1921.) Negligence 48- Railroad employés, operating crane, held under no duty to look out for employé of independent contractor, in absence of notice of danger. Where plaintiff's decedent, employed by an independent contractor to do reconstruction work in defendants' railroad shops, was killed by an electric crane running on an overhead track while on a ladder leaning against the framework of the crane, held, that the railroad employés owed no duty of keeping a lookout, in the absence of notice that decedent was in a dangerous situation. Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Second Di vision. Action by Robert A. Mattingly's administrator against Walker D. Hines, Director General, and another for injuries resulting in death. Judgment for defendants, and plaintiff appeals. Affirmed. Edward J. McDermott and Gardner K. TURNER, C. Robert A. Mattingly, in Ju- was necessary to make an excavation near one of the steel columns supporting the track upon which the elevated crane ran, and, in doing so, to remove or weaken the foundation of one of the columns supporting the crane track, and before removing the same it was thought advisable to place temporary supports in place of the one to be removed. With this end in view, Gaum, the foreman for the Struck Company, directed Mattingly and Walker, another employé, to place a ladder in the pit or excavation and up against the framework upon which the crane was operated, so that one of the workmen could go up the ladder and see that the top of the temporary support was placed at that end in the proper position. Mattingly and Walker placed the ladder as directed, and then Walker was ordered to go up to the top of it and see whether there was any interference there with the running of the. Walker went up as directed, and reported back to Gaum, in the presence of Mattingly, that it was safe at the top and in the clear of the crane. When Walker returned, Mattingly, under directions from the foreman, went up the ladder for about four or five rungs, and his head was then some 3 or 4 feet lower than the track upon which the crane operated, and that much lower than the top of the ladder. While Mattingly was in that position, and facing east, looking to the proper placing of the top of the temporary support, the crane passed on the track and struck the top of the ladder, knocking it and Mattingly down, and in the fall he received such injuries as resulted in his death. This is an action by Mattingly's administrator against the Director General of Railroads and the Louisville & Nashville Railroad Company for damages, and upon a trial, after the plaintiff's testimony had been taken, the trial court gave a peremptory instruction to find for the defendants, and the plaintiff, com At one place in the yards, and at a point where part of this reconstruction work was going on, the railroad company operated an overhead traveling crane for some distance, running north and south. The crane was operated by electricity, and ran on an over-plaining of that action, has appealed. head track, supported by steel columns; the track being about 12 feet from the ground. The framework of the crane stood several feet above the track upon which the crane ran, and on top of this framework was a small motor, and from that were hung chains for the purpose of lifting heavy materials on the ground. On the east side of the crane was a small cab, a few feet square, attached to the framework of the crane, and there the operator sat while controlling the movement of the crane by electricity. This cab is a part of and attached to the crane, but swings about 3 feet below the bottom of it, and, being about 6 feet high, the top of the cab is about 3 feet above the bottom of the crane. It is somewhat difficult from the record to understand the exact nature of the framework upon which the overhead crane was operated; it appearing that there were some temporary maps or drawings used on the trial in the circuit court which are not in this record. The plaintiff's evidence showed, in substance, what we have already stated, and that the movement of the overhead crane was almost continuous, and that it moved up and down the track many times a day, some days more often than others, and that it moved slowly, about as fast as a man walks. It further showed that the ladder, at the point where it was knocked down, had been placed there only four or five minutes when the accident occurred, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) and that it was the first time the ladder had [ and that no duty devolved upon the railroad been placed in that position. The evidence further showed that the crane operator was an employé of the Louisville & Nashville Railroad Company, and that that company was operating the crane, although the reconstruction work was wholly under the control of the Alfred Struck Company. It further showed that when the crane operator was in his cab or cage, and operating the crane, he could have seen the workmen on the ground under him and could have seen the foot of the ladder; but there is no evidence that the craneman was given any notice that the ladder was placed as it was, and there is no evidence that he could have seen from his position, or did see, that any one was upon the ladder. The cage or cab was on the eastern side of the crane, while the ladder was placed against the western side of the framework upon which the crane ran; and the view of the operator, of one standing upon the ladder, was obstructed, at least partially, by the framework of the crane, by the steel columns, and by the I-beams at the top of the supporting columns; such beams being about 2 feet in depth. There is no evidence, as stated, that the crane operator had any notice of the position of the ladder, or that anybody was on the ladder; and there is no evidence that he saw Mattingly on the ladder, and there is no evidence from which it might be inferred that he could tell from his position in the cage that the ladder rested at its top in such a way against the framework as would cause a collision with the crane. We gather from the evidence that the head of the crane operator, when in his cage and operating the crane, is about on a level with the tracks, and even if he saw the ladder placed against the framework, and even if he saw Mattingly on the ladder, he was in no such position as to be able to see that the ladder was so placed as that the operation of the crane would knock it down or interfere with it. It appears from the evidence that Walker reported to his foreman, in the presence of Mattingly, that the ladder was so placed at the top that the operation of the crane would not interfere with it, and that he went to the top of the ladder for the purpose of passing upon that very question. And surely, if it appeared to one who was especially investigating that question that it was safe and in the clear, certainly it could not have been expected that the operator, on the other side of the framework, some 35 or 40 feet away, could have told that it would be knocked down by the operation of the crane. It is conceded that the Alfred Struck Company was an independent contractor, company to furnish the Struck Company's employés with a safe place to work. But we infer from appellant's brief that it is claimed a lookout duty was owed to the employés of the Struck Company. Clearly counsel is in error. In the first place, it appears that the crane was operated on an elevated track 12 feet from the ground, and it is not reasonable to suppose that under any ordinary conditions there would be persons upon such a track; and, in the next place, it appears that the crane operator had no notice that Mattingly, or any of the Struck employés, were in a position of danger, or that the ladder was placed where it was, or in such way as to cause a collision. A lookout duty or warning is only required of a contractee where he knows of dangers to the employés of the independent contractor, of which they have no notice. Wells v. Duncan Coal Co., 157 Ky. 196, 162 S. W. 821; L. & N. R. R. Co. v. Smith's Adm'r, 134 Ky. 47, 119 S. W. 241; L. & N. R. R. Co. v. Newland, 176 Ky. 166, 195 S. W. 415. The case of Bradas v. Henry Vogt Machine Co., 175 Ky. 803, 194 S. W. 1044, is essentially different from the case at bar. In that case the operator of the crane had notice of the dangerous position of the workman and of where he was at work, and actually knew he was there, and that he was at work in dangerous proximity to the crane when it passed him; and it was therefore held that it was the duty of the crane operator to keep a lookout for the safety of Bradas upon every trip that he made past that point and to give him warning of the approach of the crane. In that case the lookout duty devolved upon the craneman because of his knowledge, and because of notice that the workman was at work in a dangerous position when his crane passed that point; while in this case there is no evidence that the crane operator either knew or had notice of the fact, either that the ladder was placed against the framework, or that it was placed against it in such manner as to be dangerous, or that appellant or any other employé was on the ladder at the time. To the same effect is the case of L. & E. Ry. Co. v. White, 182 Ky. 267, 206 S. W. 467. There is no question of concurrent negligence presented by the record. The only question is whether the crane operator was remiss in any duty which he owed to the employés of the independent contractor; and as we have seen he owed them no lookout duty, and had no notice of the dangerous position in which the decedent's fellow employés had placed him, the lower court properly directed a verdict for the defendant. Judgment affirmed. (192 Ky. 253) GATES v. GATES. (Court of Appeals of Kentucky. June 24, 1921.) 1. Divorce 36-Party held not to have lived "apart without cohabitation" within the statute. A husband and wife who had lived together in the same house, treating each other and holding themselves out to the world as husband and wife for a period of five years and until about two weeks before commencement of the wife's divorce action, and who during a portion of such time had slept in the same bed, did not live "apart without cohabitation for five consecutive years next before the application" for the divorce within the statute making such separation a ground for divorce, even though at no time during such five years did they indulge in sexual intercourse with each other. 2. Divorce 128-Evidence held not to prove husband habitually drunk. In wife's action for divorce, evidence held insufficient to show husband a habitual drunkard. 3. Witnesses 60 (2)-Wife suing for divorce not competent to prove husband's infidelity. Under Civ. Code Prac. § 606, as amended by Laws 1912, c. 104, a wife suing for divorce was not competent to prove that husband had flirted and trifled with other women. 4. Witnesses 52(1, 2)-One spouse can testify against other only in cases of personal assault or attempt to injure other. Under Civ. Code Prac. § 606, as amended by Laws 1912, c. 104, one spouse can only testify against the other in cases of personal assault or attempt of one to do injury or violence to the person of the other. By profession the husband, Sam C. Gates, is a dentist, and has been engaged in the prac tice of his profession for fifteen years or more. Their home was in Covington, Kenton county, Ky., but about two weeks before the institution of this suit Mrs. Gates, without his knowledge of her purpose to do so, abandoned him and his home, and taking their only living child, a son about seven years of age, went to Owensboro, Ky., and took up her residence for the purpose of this litigation. They are people of very moderate means, but the record in this case is large and expensive. The wife, Mrs. Ona F. Gates, instituted this suit in the Daviess circuit court against her husband, Sam C. Gates, for absolute divorce and alimony in September, 1918, on the grounds of cruelty, drunkenness, failure to support, and infidelity to his marriage vows. By answer he controverted all the material averments of the petition, and sought by counterclaim to be decreed a divorce from the plaintiff on the grounds that they had lived apart for five years without cohabitation. Both plaintiff and defendant testified by way of deposition at great length, covering in detail the whole of their married life and recalling its many vicissitudes. In the petition the wife averred defendant had illtreated her by cursing, abusing, and striking her with his hand. She also accused him of carnal intimacy with women and drunkenness. To all these accusations she testified directly, and related circumstances which tended to prove them, and she is partly corroborated by two of her friends who lived close to the Gates home in Covington for a short while. [1] In his testimony the defendant makes plaintiff out a very jealous, nervous, irritable, 5. Witnesses 60 (2) Wife competent to and troublesome woman whom nothing would testify that husband has habitually acted to- please and who delighted to annoy and harward her in cruel and inhuman manner. ras defendant. He also testified, as did she, Under Civ. Code Prac. § 606, as amended that they had not lived and cohabited toby Laws 1912, c. 104, the wife can testify together as man and wife for as much as five facts which prove that the husband has habitu ally acted toward her for six months or more years next before the commencement of this in such a cruel and inhuman manner as to in-proceeding, but no other witness was offered dicate a settled aversion toward her or so as to permanently destroy her peace and happi ness. Appeal from Circuit Court, Daviess County. Action by Ona F. Gates against Sam C. Gates for divorce, in which defendant filed a counterclaim. Petition and counterclaim dismissed, and plaintiff appeals. Affirmed. W. P. Sandidge, of Owensboro, and B. F. Graziani, of Covington, for appellant. Clements & Clements, of Owensboro, and R. G. Williams, of Covington, for appellee. SAMPSON, J. The parties to this proceeding are husband and wife, and each is seeking a divorce. They were married in 1897. or testified to these facts. While it may be true that plaintiff and defendant have not indulged in sexual intercourse with each other, as they both testify they have not, yet all the evidence shows that they lived together in the same house in Covington with their only child until about two weeks before this action was commenced in the Daviess circuit court. It is further shown that they treated one another as husband and wife, and so held themselves out to the public. Over and above this they each admit in their testimony that they had been sleeping in the same bed part of the time during the five-year period. These facts, if proven by competent evidence, would not entitle the parties to a divorce, for sexual cohabitation is not all that is embraced in the legal phrase "living and cohabiting together as husband For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |