Kentucky Lumber Co. v. Smith, Pulaski, 1904

KENTUCKY LUMBER CO. v. SMITH.

COURT OF APPEALS OF KENTUCKY

82 S.W. 977; 1904 Ky. LEXIS 328; 26 Ky. L. Rptr. 937

November 15, 1904, Decided

PRIOR HISTORY:  [**1] Appeal from Circuit Court, Pulaski County. "Not to be officially reported." Action by Joe Smith against the Kentucky Lumber Company. From a judgment in favor of plaintiff, defendant appeals.

DISPOSITION: Affirmed.

COUNSEL: O. H. Waddle, for appellant.

Denton & Robinson, and W. A. Morrow, for appellee.

JUDGES: NUNN, J.

OPINION BY: NUNN

OPINION

 [*977]  NUNN, J. - This is the second appeal of this case, the former opinion being in 78 S. W. 120, 25 Ky. L. Rptr. 1386, 25 Ky. Law Rep. 1386. In this opinion all the questions discussed in appellant's brief were directly passed upon except those as to the instructions given to the jury. We do not, therefore, deem it necessary to enter into a discussion of the facts as presented in this record, or to respond to the contentions of appellant's counsel on the question of the sufficiency of the evidence, or upon the point that a peremptory instruction should have been given, or upon the question of the contributory negligence of appellee. The opinion referred to settles these propositions. The only question to be determined is whether the court gave proper instructions to the jury.

The instructions, as a whole, were very favorable to appellant, but it makes serious objection to the last one, which is as follows:  [**2] "If you shall believe from the evidence that the position of the plaintiff at the tree was reasonably safe if the tree cut by Collier had not fallen against the tree being cut by plaintiff, and that the danger to plaintiff which resulted in his injury was caused by the negligence of Collier alone in felling his tree against the tree being cut by plaintiff, and was not caused by the gross negligence of Richard Taylor, you will find for defendant." This instruction was offered by appellant, and it was given by the court after insertion of the word "alone" after Collier's name, but to the insertion of this word the appellant complains. It is unnecessary to pass upon, and we do not pass upon, the question as to whether or not this was error on the part of the court, for the reason that the evidence does not show even the slightest negligent act on the part of Collier in the cutting and felling of his tree. He cut the tree as directed by cutting it from the under side and opposite the drift, and, if it fell against the tree which appellee was cutting, it was by reason of a breeze, the shape of the tree, or from some other cause peculiar to the felling of trees, in that they frequently fall  [**3] at some other than the desired place, of which peculiarity the foreman was presumed to have known at the time he ordered appellee to perform the labor at the place where he was hurt.

Wherefore the judgment of the lower court is affirmed.