Gould Const. Co. v. Childers' Admr.

that case must not be regarded as authority on that point.

The indebtedness created by the issuing of the bonds is not a municipal indebtedness within the meaning of the Constitution limiting municipal indebtedness. The liability is solely against the property. Self v. Catlettsburg, supra. Nor is a lot owner being deprived of his property without due process of law. He has notice by the publication of the ordinance required by the statute. C. & O. Ry. Co. v. Mullins, 94 Ky. 357, 15 Ky. Law Rep. 139, 22 S. W. 558.

The order granting the injunction is therefore dissolved.


Gould Const. Co. v. Childers' Admr.

Appeal from Rockcastle Circuit Court.

L. F. JOHNSON, Special Judge.

Judgment for plaintiff defendant appeals-Affirmed.

1. Master and Servant-Injury to Employe-Vice Principals.— Where the foreman of work goes away for a short time and puts another in charge in his place during his absence, such other person for the time being is a vice principal, for whose negligence in giving orders in the execution of the work, resulting in injury to a laborer on the work, the master is


Gould Const. Co. v. Childers' Admr.

liable, as it would have been for such negligence of the regular foreman.

Same.-Negligence of the foreman in charge of raising logs onto a bridge in course of construction, in giving a signal to the engineer to drop the log when it was suspended several feet above the truck on which it was to be placed, resulting in injury to a workman whose duty it was to take hold of and guide the logs to their position, was negligence of a vice principal.

3. Same-Contributory Negligence.-From a river and between the two tracks of a bridge in course of construction, logs 12 feet long and 1 foot thick, were being raised, by an engine and a rope tied at the middle of the logs, and placed on a truck lengthwise thereof; a man being stationed at each end of the truck to take hold of the ends of the logs and guide them as they were lowered onto it. Held that, the end of a log suspended above the truck by the rope having swung off to the side, so that the man at the end of the truck could not reach it, it was not contributory negligence for him to go to the side of the truck to pull it back in position; he not being bound to anticipate that the foreman would regligently give the engineer the signal to drop the log before it was in position, and while it was several feet above the truck, and that it would rebound and hit him, throwing him into the river.

4. Death-Damages.-A verdict of $4,000 for death of a healthy young man 24 years old is reasonable.

J. N. SHARP for appellant

We submit that this case shall be reversed.

1. Because the law is that the servant is bound at his peril to select a position which will protect him from unnecessary risks in so far as they are known or ought to have been known, and when he takes a position obviously more dangerous than another which was available, he is guilty of contributory negligence and there can be no recovery.

2. Because appellee's intestate was the fellow servant of McEwan the acting foreman of those engaged in the work, whose negligence caused his death.


Crookstone Luraber Co. v. Bruton, 149 Fed., 685; Gilbert v. B. C. R. R. Co., 128 Fed., 529; Brice v. L. & N. R. R. Co., 10

Gould Const. Co. v. Childers' Admr.

Ky. Law Rep., 526; Helm v. L. & N. R. R. Co., 17 Ky. Law Rep.. 1004; R. R. Co. v. Jones, 95 U. S., 439; Dawson v. C. R. I. Co., 114 Fed., 870; Erie R. R. Co. v. Cain, 118 Fed., 223; Labott, Master and Servant, 334.

ROBERT HARDING for appellee.

C. C. WILLIAMS and GREEN & VANWINKLE of counsel.

We submit:

,1. That the sole cause of intestate's death was the wrongful act on the part of acting foreman McEwan in giving the signal in obedience to which those in charge of the machinery let the log fall, which struck and knocked deceased from the bridge and killed him.

2. The acting foreman was not the fellow servant of deceased. The regular foreman was absent and in his absence McEwan always took his place and regulated, directed and controlled the movements of those in charge of the machinery, and was o all "intents and purposes" the foreman for the time being.


L. & N. R. R. Co. v. Sullivan's Admr., 25 Ky. Law Rep., 855; L. & N. R. R. Co. v. Moore, 83 Ky., 680; Mayfield Woolen Mills v. Frazier. 25 Ky. Law Rep., 2263; Red River Lumber Co. v. Newkirk, 12 Ky. Law Rep., 635.


The Gould Construction Company was engaged in constructing a double-track railroad bridge across Rockcastle river. The tracks were some 8 or 10 feet apart, and the ends of the cross-ties were so far apart as to leave an opening of about 3 feet between them. Through this opening the construction company was drawing up logs from below, and placing them on trucks which were loaded on one of the railroad tracks. The logs were about 12 feet long and 12 inches in diameter. To get them up a rope attached to a

Gould Const. Co. v. Childers' Admr.

derrick was let down and fastened to one log at a time, and this was then raised through the opening by machinery to a point above the bridge, and then lowered to the truck placed to receive it. One man was stationed at the engine and controlled it. Another was stationed at a pulley and guided the rope. Men under the bridge tied the rope to the log, and when it was ready the foreman, standing on the bridge, gave the signal to the engineer, who hoisted it up; and when it had reached the proper height he gave him the stop signal. In order to get the log placed on the truck properly, one man was placed at each end of the truck, and it was the duty of these two men, when the log had been raised to the proper height and was lowered, to take hold of the ends of the log and guide it to its proper position on the truck. The regular position of these two men was at the ends of the truck. The ties on which the truck rested extended out about 6 inches beyond the side of the truck. Childers and one James Neil were the men at the truck. The foreman had gone to the express office, and had put in his place a man named McEwan while he was gone. When the log was brought up the small end of the log was toward Childers, and, as the large end was the heavier, it hung lower down than the small end. The log, being tied in the middle by the rope, would not always swing parallel with the track, and the small end of this log swung out to the side, next to the opening between the two tracks. To pull it back to its position Childers stepped to the side of the truck, and, standing there, was pushing the log back to its position, when McEwan suddenly gave the signal to the engineer to let the log drop. The engineer obeyed the signal. The log dropped to the truck through a space of about 4

Gould Const. Co. v. Childers' Admr.

feet. The large end striking first, the smaller end was thrown around against Childers, striking him on the point of the chin and knocking him from the bridge. He fell to the river below, a distance of about 60 feet, and when rescued was dead. This suit was. brought by his administrator to recover for his death, on the ground that there was negligence on the part of McEwan in giving the engineer the drop signal at the time he did, and that this was the cause of Childers' death. The answer controverted the allegations of the petition, and on a trial the jury found for the plaintiff, assessing the damages at $4,000. The defendant appeals.

The first question to be considered on the appeal is whether the court should have instructed the jury peremptorily to find for the defendant. It is insisted that this should have been done for two reasons: First, because McEwan was a fellow servant of Childers; second, because Childers would not have been hurt if he had remained at the end of the truck, and it was negligence of him to go to the side of the truck. It is also insisted that, if there was any evidence to take the case to the jury, the verdict is palpably against the evidence, and should be set aside.

1. If the foreman had not gone to the express office, and had remained on the bridge continuing to give signals as before, it would hardly be maintained that the company would not be responsible for his negligence. That there was negligence on the part of McEwan is manifest. The custom was to lower the log gradually until it reached the truck. Any one would know that as large an object as this, if dropped through a space of 4 feet suddenly, was liable to hurt the man at the truck, whose duty it was to guide it into position and load the truck. Instead of giving

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