xt70zp3vt865_252 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/mets.xml https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46.dao.xml unknown 14 Cubic Feet 31 boxes archival material 63m46 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Harkins Family papers Mineral rights -- Kentucky -- Floyd County -- History. Law reports, digests, etc. -- Kentucky. Mining leases -- Kentucky -- Floyd County -- History. Practice of law -- Kentucky. Bankers -- Kentucky. Banks and banking -- Kentucky -- Prestonsburg. Coal trade -- Kentucky -- Floyd County -- History. Lawyers -- Kentucky. Langhorne, C.D. et al v. Wiley, J.M text Langhorne, C.D. et al v. Wiley, J.M 2016 https://exploreuk.uky.edu/dips/xt70zp3vt865/data/63m46/Box_24/Folder_5/4318.pdf 1904 1904 1904 section false xt70zp3vt865_252 xt70zp3vt865 C O U R T O F A P P E A L S. .
"> C. D. Longhorns & Others Appellants. a
"”475---” Brief for Appellants. j
J. M. Wiley, Appellee. ;
' On the 4th of January, 1904, J. M. Wiley instituted :
a suit in the Johnson Circuit Court in the State of Kentucky, .
wherein he sought to recover against 0. D. Longhorns, C. I. 7 :
Johnson, J. A. Briggs and J. A. Pitts, partners in the firm ;
name and style of Longhorns, Johnson & Company, the sum of i
Two Thousand Dollars damages, alleged to have been sustained .,5
by him by reason of aaczéeempseé alleged negligence of I I g
the defendants. The said Langhorne, Johnson, Briggs and E
Pitts compased the firm of Longhorns, Johnson & Company, ‘Vig
, and as such were general Contractors for the construction ‘ J5
4 of the Big Sandy branch of the Chesapeake 4 Ohio RailWay, -‘
‘ , from White House, Johnson County, Kentucky to a poiut in
JPike County, Kentucky, a distance of 80 miles. These gen— f
tlemen composing this firm were the general contractors Who V I
_had the contrast from the Railway Company for the entire
.* lino, Which theyeqatuafilt‘hy‘sub-letkigg Sigfififidsafiyartiflfls 'f
, W to different contracting firms, as sub—com.

. ' ‘ tractors, the first of whom, SouthWard from White House 2
was Langhorne a Ricketts, of which last flamed firm of sub— ‘
contractors, C. D. Longhorns was a member, but aside from
his being a member of the sub—contracting firm, and being a

V . a member of the general contracting firm of Langhorne,
Johnson & Company, there is no point of identity between the ‘ ,
. two, and in addition to this fact we wish to make permanent _
I $23'ESE%§§Ee£?CEntssfiyaleEBécEém%héh§réaiflgyc88%Pletneasof fig

 i; e" ,
p p 2. 7
, completed, and the Big_Sandy Railway Company, as such, was
engaged in surfaCing the track and otherwise completing
‘ the construction of the road. 7 _
‘ The grounds of Plaintiff's charge of alleged neg— V
ligence consisted in the defendant's failure and refusal
to provide the Plaintiff with proper, safe and sufficient
tools and appliances with which to do said work, and alleges
that said alleged negligence consisted in not furnishing
him proper, safe and sufficient tools with which to split
and get out stone, but carelessly provided Plaintiff and 7
those Working with him unsafe, insufficient and defective
' tooms and appliances therefor, in that they furnished him
, and provided for the purpose of splitting and getting out
I > f said stone a steel tee rail cutter, and hammer weighing from, 9
5 i 14 to 16 pounds, avering that the said tee rail cutter was 1
about 6 or 8 inches wide and 10 to 12 inches long with an .
eye in it near the'center in which a wooden handle about
. IA two feet long was placed, and one end of said cutter was
sharp, while the other end was thick, and was made for the
purpose of cutting off the ends of tee rails.
Plaintiff further avering that While holding the
i tee rail cutter in position upon the stone in which they
.& were engaged in getting out and another person hitting the
e said tee rail cutter with a sledge, he, the Plaintiff, was
; greatly and permanently injured by-a piece of steel break— ~~«
» ing off the top of said cutter where it was being hit, as
aforesaid, by said sledge hammer, which piece of steel hit V
’ cutting and lascerating his arm and wrist,
Plaintiff on the arm and wrist,Aand penetrating his arm and
p _ muscles, etcetera, to his alleged damage in the said sum
. of Two Thousand Dollars. ' A
~ The averments of the Petition are quite extended
V but all of which were denied by Defendants in their Answer

 . ‘5 » .
and as further defense thereto tho Defendants averred that ‘
at the time the said alleged injurvaas sustained the said A
, Plaintiff was not employed by, nor forking for Langhorns,
Jphnson a Company, but was employed by and working for the
Big Sandy Railway Company on force account in getting out I
'stone for concrete work, and immediately before and at all
times While so engaged in the construction of said railway
the said J. M. Wiley was employed by and working for Lang-
horns and Ficketts, and at no time employed by Langhorne,
+ a
' Johnson & Company, and that the said Langhorne and Ricketuo
C were independent cantractors, and whatever injury was sus—
. I tained by the Plaintiff, the said Langhorne, Johnson & Com—
_ , , pany were not responsible for any reason.
; Defendants further avcrred that the injury complain-
: ed of by Plaintiff, if sustained at all, which is denied,
' was thaaé£g3;a;and.iimroximately caused by the carelessness
V and negligence of the said J. M. Wiley, and was of such con-
tributory character as barred him of any right of recovery.
V As a further ground of defense, and entirely con»
sistent with the afore—mcntioned defenses, the Defendants
aver that prior to 'he time at which the said Plaintiff, JAE
, Wiley sustzig?d,ihe injury complained of he had knowledge
; UX aA~U# ‘
, V ., of the saddenee of the impending danger, and the alleged'
; unsafe condition of the toe rail out er with which he was
; \ ‘wuorking, and that knowing of the evidence of the danger,
I and continuing to work with said tools after his knowledge
: _ of said fact, was of such contributory negligence as barred
him of any right of racovery against the Big Sandy Railway
Company, Langhorne a Ricketts or these Appellants.
The evidence offered for the consideration of the .
, EKKKK Jurydoes not sustain the averments of Plaintiff’s
. Petition, in that the tools complained of as Pi I unsafe :
an improper and insufficient and defective,£§éfaaég:&nail cutter ,

 .'. h r
V 4. g
g land it is averred in the Petition that a sliver or particle ‘
. of steel from said tee/rail_cutt§£_penetrated and lascerated
the flesh of said Plaintigi whihh produced said injury, and
much evidence was exhibited with the attempt to show that I
‘ I a tee rail cutter was not a proper tool to be used'in cut-
. ting stone, that by reason of the uses that was required
in cutting steel rails that it was of necessity higher tem— g 7.
I , pered, and therefore, more liable to curl, sliver or brake
away from the main part of the tool than was a tool of h
softer temper. No doubt the learned counsel, in presenting -
I the evidence of the case, forgot that in the evidence of
the Plaintiff himself he stated in answer to the question ,
,P. 5 Bill of Exceptions as follows: ' .
V i Q. How broad is the blade? _ . J
A. Something near two inches, I think. I took the
. CutteQ.and went down there and Commenced splitting rock, ani
I was holdzggiit ggfihg just as the piece hit the.rock, and
I was sitting and holding it, and was squatted down and .
' . was holding the handle in this position. My son was doing
the striking. Doc Spears had been striking When my boy
took held of it, and the scale that come oflof the head of
_ 7 the hammer, must have come off the head of the hammer. .
I saidfizboys come pore water on my hand, I am ruinEd;.
Thus showing that the injury was produced by a piece of
steel flying from the sledge hanger, and not from the tee
rail cutter, as averred in the petition, and it was with ,
a knowledge of this discrepancey between the proof and the ,
averment that induced counsel for defendants to enter motion
. for peremptory instructions as in case of non-suit, which '
upon being overruled exceptions was reserved, and is now
urged and insisted upon as a ground for reversal. Said
motion for peremptory instnuctions will be found referred -
to on P. 21 Bill of Exceptions, and copied on P._.‘_‘_of th
,_ record. , y __:,j

 of . r
Albert (Doc) Spears was next intruduced and as a Witness 1
I and testified as follows: ' ’
Q.Tell the Jury what he was doing if you remember.
A. He was holding the tee rail cutter that was used to cut '
off_rails on the road, and was holding it low, and there
was a man, his son I think, striking it at the time and a _
piece chipped off the hagggr and struck him in the wrist . .
. and he says he was ruined. ' {fifi . I
I Upon the question as to thether Langhorne Johnson
& Company, the Appellants herein, were engaged in doing .
this work, we beg to call the attention of the Honorable
Court to the testimony of Co B. Bicketts.
’ Q. What relation do you sustain, if any, to Langhorn & ‘
Ricketts?
A. I am one of the firm. I
' Q. Are you acquainted with that part of the Big Sandy Rail—
way iXfiRg lying in Johnson County near Big Cut? I
A. Yes sir. ‘ ,
. V 3». Where is that situated?
A. It is on the first mile from White House;
. Q. Do you know who had the contract for constructing and -
1 grading the Big Sandy Railroad from White House to "Hell's V ,
1 Gate" in Johnson County? ‘ _
AoLanghorne & Ricketts had the contract,under Langhorne ,.
- , Johnson & Company for the first ten miles, which ended near
Mr. Vanhouse's up here. _ g
Q. Were Langhorne & Ricketts independent contractors under
’Langhorne, Johnson & Company? '
A.Ye s sir.
Cross—Examination.
* Q. Langhorne Johnson & Company had the contract for build—
' V . ing the Whole road up the river, did they not?
A. fies sir, they had contracted for everything but laying
. trac .

 'os , (0,.
Q. And Langhorne & Rioketts had the contract for grading th
road to a point above Paintsville?
, A, Yes sir. . I
Q. Langhorne a Ricketts, sub—contractors, had the oontrao . A
simply for grading and did not include track laying? ' .
, A. No sir, we did not have the contract for tracleaying,
' and had nothing to do-with it but to furnish some men for
track laying from White House to Greasy.
Q. You heard the witness testify where he was hurt?
I , A. Yes sir. V _ I
i - Q. Was that on the work Mr. Morris controlled? . »
' A. I do not know, but it was bstween White House and the
bridge. The track was layed across the bridge in one , 3
‘ ' ”days work, and Mr. Morris had oontrol of this track laying.
Upon the subject of for whom the Plaintiff was
[working at the time the alleged injury was sustained, _
please note the testimony of E. T. Morris, who was intro— '
duced first witness for the defendant, and who was a Civil
Engineer and manager for the affairs of Langhorne, Johnson
& Company in the construction of the Big SEndy.Railway. .
Q. Have you heard the testimony in the case, also the date
‘ as testified plaintiff received the injury?
As Yes sir. V I ' '
Q, Who were they working for on that day?
A. They were working as a Company force of the Big Sandy '
Railway Company, under Langhorne, Johnson & Companyfs man- '
agar. “
_ Q. How were they paid?
' A. By Langhorne Johnson & oompany's Rolls, which were made
, $ Egea§gussnt to the Big Sandy Railway Company for payment.
‘ familliar with that part of the road frOm White
4 House to the bridge? I
L, A. I am. .,.. _,

 o , _ 7
Q.Who had the contract for its construction? '
A. Langhorne Johnson & Company had_the contract for its
graduation but not for the track laying. I
‘ Q. Who did lay the track? . _V
'4 A; Big Sandy Railway Company laid it with a Company force 1
which Langhorne, Johnson & Company's manager had charge of.
Q. Bid Langhorne, Johnson & Company have a contract for.
the kind of work that Mr. Wiley was engaged in and split-
’ ting stone? I
_ A. No sir, Mr. D. A, Allen had that contract.
3 Q. Who ordered the force to split this stone?
. - A. The forCe was put there by my order with Mr. M. O. 3
" Hankin's consent. _ x '
' V Q. Who is M. 0. flanking? ‘

_ A. Mr. Henkins is the Big Sandy Railway Company's Engineen
in charge of construction, and he ordered me to instruct
these men to go on that work. ‘

- VRe-Examined by Defendants. . V - _ .

1. Q9 What is the business of Langhorne, Johnson & Company?

, A. General Contractors.

h _ Q. Did they construct any part of the Big Sandy Railway _ I

: from White House +o the bridge or point above there? .

V : A. No sir. - ' I'

Q. Please tell the Jury how that was done. d "

‘ A. The work from White House to a point jugt above the .‘
Depot was done by Longhorns & Ricketts, that is, the .
graduation and stone masonry. The masonry at Buffalo

- chridge was done by D. A. Allen. Paint creek bridge was
1‘. built by ?, J. Davidson s Co. Theye'were three different I
f L and independent concerns. - I V

 3i ‘ . 4 ,
““ - f ' ,.
QtDid Langhorne, Johnson & Company have men working at gr$—- .
' ing that part of the road, handling ties, Surfacing track
or putting on the rails? , I
,I ‘ A. No sir, they were not. .They were in charg-e of a force :
i for the Railroad Company doing it :
Upon the subject of the Appellants, Langhorne, John—
son & Company's connection Withthis work, I think I can _
‘ safely assume that the testimony undoubtedly pyoves that V ‘
Langhorne, Johnson & Company was not aeeéte in the prosecum
_ .tion of this work, and was removed_from the employment of
- the plaintiff and the relation of mastef to him, at least
" one a if not two independent contracting firms. .
. Secondly, one independent contracting firm, Langhorne & Ride -
‘ Site; and on the other hand, working for the Railroad
, ‘ COmpany under whom the Appellants, Langhorne, Johnson & Co
were primary contractors” .And if this fact be true, the
relation Of master and servant did not exist between Langm I
'horne Johnson & Company and the tlaintiff, 7. ". miley,
- LQVfifi’ ' ‘
i. and they owed him no service nor neafiuty, and are in no
: way responsible to him for injuries sustained.
I Upon the question as to whether or not the tools
. . furnished Plaintiff were proper, safe and sufficient tools,
U: the issue was clearly joined, and the evidence.in the case
,‘ I undoubtedly shows that the tee rail cutter, which Plaintiff
R ’ avers was the cause of his injury, was a proper tool and a '
7:; » V safe tool to be used in splitting stone. 7
iii! 1 Undoubtedly all will admit that a sledge hammer was
I a proper, safe and Sufficient tool with which to break ston
- 'or to drive wedges with Which to split stone, and it is f
‘ with this tool that both the Plaintiff and one of his maten
fl ial witnesses shows that the piece of steel flew from. . I _
The testimony of both the Plaintiff and Defendant
V. itaken in connection with other upon the subject of the V '

 " 7
V W" sufficiency, the security or the kind of tools used being
»”f proper tools, the evidence undoubtedly showe that among
Railroad people engaged in the construction of a line of .
road, the tee rail cutter is often used instead of wedges 1
in Splitting stone. ' Itwas sufficient in doing its ,
work, and was reasonably and jstbg as safe as steel wedge '
or other tools used in connection with getting out stone.
The evidence conduce s to show that both the steel rail cut—
terund the sledge hammer in use on this occasion was taken
' from among many others of its class in a tool chest which
(W: I I I J- U
juaagflLaHEAHhmr'mT1Ennr1nmmflnHKnr4flxfiegfiufinryenufdfirrsmrsan-
r . ryy—and—thc-fthE1—EBE?IBTitmr1flF4#gssnuxkfifinrfifinnrfimrhng-
CAQVcovmwiéfifiéio
7 pcmmfimfifififit And this fact is a substance to be considered
in determining the safe, secure and proper material from
which the said npxxakian sledge and tee rail cutter were V
made, and that there was nothing apparent, that would dis-
‘ tinguish this from any other hammers and tee rail cutters
, on that occasion that would indicate that was either unsafe
' or insecure. And as it was,the Plaintiff, the Appellee
I hereinwha had better opportunity than any one else to seed
' . Wca¢m404£L/
: and observe the tools, and could by the exercise of das
:' dilligence discover its unsafe condition, and could have
3 refused to continue working with it, or at moSt, could
have called the attention of the foreman in charge of
'the Work to the seeming deficient and uneafe condition
V of the tool, if any existed. The fact that he did not do
i ' so tends to establish the fact that the Plaintiff Was the I
{ I victim of an unfortunate occurrence in a small piece of steel
' 1 flying from the sledge hammer and lascerating his flesh,
: t which sledge hammer was in the hands of his son doing the
_ harder part of the work, and whom, we may feel safe in

 . ./,&
assuming that if there was any apparent lack of sufficiency l
_ and safety in the_tools, would not have gone on with the . .2
Hwork. V If If P i i I?
. It is true that the record ccnduces to show, and h
I ;{g the sympathies of the Jury wer e,no doubt intensified : , i .
. on the part of the Plaintiff, who exhibited his arm in a
running sore in the presence of the Jury, butzi2622iimiot 7
stand suffiCiently proven that any injury was deaéaud and-01/’
Ezprofimakely caufied,Eykfihedgggjgugimgggel whihhfizflwas al-
\ $_. leged flew fromflthe hammer and cut into the muecles of his ,
JV; arm. In fact, it is not shown that a piece of steel ”
_ V ‘did out it anywhere, except as we may rationally conclude P
;1 i that the first cutting was while he was at his work, and ' 'f“
j it is not intended to insist that a flying particle of
, steel did not penetrate the arm, but the present unfortun»
ate condition of the man, I feel justified in saying, would
never have followed as a natural result of said injury had I
, he not fallen into the hands of a trio of skilled physicians
‘ and Surgeons, who as fast as one wound would heal would
, insist on cutting the arm bigger and deeper, until on '
L three seperete occasions, according to the evidence in this
> case, the poor man was mgng2%Z%%ffer from a knife in the
. . LOUD
‘ hands.ofhhesc "medical Butchens". The absolute disregard
% of Hygienic conditions, and lack of sanitary methods em-
: . ' ' Moi/cg 70' ,
1 ‘yr ployed in probing the wound on sundry occasions/steraliqu
i lng.the probes, and cutting into the arm to the bone on
1 three different occasions without antiseptic applications
7 Would come nearer, in our judgment, in produding the .
: wound from which Plaintiff is suffering and now complaining;
5 _ than would a small particle of steel flying from the hammer
2 wielded by the plaintiff's son.

 din
. [l
. I I do not mean to criticise the justness or the I”
: , honesty of the jurors who sat upon the trial of this case , ,fi
.5 *- ‘ , ' * ' in thé".E9?ri¥tiii‘6‘?i§hipasamastory- vthe‘c‘mnsideraifion of this ' .
” Honorable Court, but I cannot understand by what rule of ;f,é
’%‘ , right Messfis C. I. Johnson, J. A. Briggs, and John Pitts, ’ _i
a“ .’::> Lgtgree of the members of the firm of Langhorne, Johnson a if
r » I; It. ..,,»jx -
3 égg- =/gngfi2ny shankd could be held responsible to and sustaining
3 Zggyy jg 59the relation-of master and sexxanx to the Appellee herein
,‘ ,, ”W .
i xii? ”fl ‘Wkficause one of the four members of their firm was a member
i: ’.: of a contracting firm of Langhorne & Ricketts for whom the '
fl ‘fzé . Defendant was Working, or why they should be held respon- ‘
t 4' 3 ‘ I
, ' ':;,jfi sible for injuries sustained by the Plaintiff while - '
5;, #1; ‘working for the Big Sandy Railway Company It tends to it
E?”i “W, ‘ »J estgtlish the feet the the synpathies of the jurors were a
‘ , « ' My fez-gig ‘3
, enlisted for the Plaintiff, and notwithstanding Plaintiff's
'W counsel had made a mistake in bringing his suit against
Langhorne, Johnson & Company instead of against Langhorne
& Ricketts, or the Big Sandy Railway Company, they were not -
going to lose an opportunity to give the Plaintiff what
they believed to be compensation for his injuries, and .x%
they accordingly with their verdict took a shot at the peo-
ple in sight, whether properly or improperly sued. ,
W is;
”if i. 7 i ..W ._, I » I I _ i

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