
    Payne, Agent, etc. v. Cooper.
    (Decided December 15, 1922.)
    Appeal from McCreary Circuit Court.
    1. Master and Servant — Personal Injuries — Pleading.-—In -an action by a section hand on a railroad for damages for an injury inflicted iby the negligent handling or wielding toy a foreman of an appliance, or because the foreman failed to give him warning of his intention to strike with a pick at a point very near to -plaintiff, it is not necessary to allege that plaintiff was not aware of the danger, for he -could not have known in advance of -such -danger.
    2. Master -and Servant — -Peremptory Instructions. — 'There toeing evidence from which the jury might -have believed the injury resulted either from the failure to give the warning or from negligent handling -of the pick, a (peremptory1 instruction was properly refused.
    3. 'Damages — Excessive Damages. — Where -the 'collar toone of a young man -twenty-eight or twenty-nine years of age was broken and the flesh, and muscles of his shoulder lacerated -and 'bruised so that he was for several weeks unable to do any work, -and was thereafter for a number of weeks unable to do -any which required the use of his left arm, and -his left shoulder as a -result of the injury was from one-half to -three-quarters of an inch lower than the other, a verdict for one thousand dollars in damages was not excessive.
    TYE & SILER and EDWARD COLSTON for appellant.
    L. G. CAMPBELL and H. C. G-ILLI'S for appellee.
   Opinion op the Court by

Turner, Commissioner—

Affirming.

During the period of government control of railroads in 1918 appellee was a member of a section crew located at Silverville, McCreary county, of which crew Ed Ball was the foreman. There was another section crew located at Pine Knot on the C., N. <0. & T. P. Railway in the ©ame county, of which G-ran Ramsey was the foreman.

It became necessary during that year to put ne-w and larger rails on the Y” which was maintained at Pipe Knot, and the nature of the work was such that it required two section crews to properly do it. The Siverville crew, to which appellee belonged, was- taken to Pine Knot to aid the crew of which Ramsey was foreman in laying and placing new rails on the ‘ ‘ Y.

While engaged in this work -appellee was struck in the-left shoulder with the pointed end of a -pick being handled by Gran Ramsey, the foreman of the Pine Knot crew. The pick entered the left shoulder, fractured the-collar bone and tore .and bruised the flesh and muscles.

This .is an action for damages because -of such injury,, and the allegations -of negligence are in substance .that Ramsey negligently -handled and wielded the pick, and. that Ramis ey in handling and wielding the pick gave the plaintiff no warning -of his purpose or intention to strike-near to the plaintiff, the plaintiff at the time being at. work in a place where he was -ordered by the said foreman to be and to work, and at a place well known to-Ramsey.

On the trial a verdict was returned for one thousand dollars in damages for the plaintiff, up-on which judgment was entered, and -.the defendant’s motion for a peiw' trial having been overruled, it has appealed.

It is complained that n-o cause of action is -stated in the petition because there is no allegation that plaintiff" was not aware of the -danger; but this i-s not an action tore-cover damages for injuries -received by an employe because he is required to labo-r .at .an unsafe place or with, defective appliances. In -such an -action the plaintiff must,, to complete his -cause of -action, allege in substance that he was not aware of the unsafe pl-aee or -of the -defective-appliances. Here, however, there is no claim either that-the place was unsafe or that the appliances used by appellee or any of the workmen were -defective in -any respect. On the contrary, the negligence complained of is; the faulty and negligent handling or wielding of the pick by the foreman, -and the negligent failure -of the foreman to warn appellee that he was about to strike with a pick at a point s-o near to appellee as entitled him to such warning. There is a -clear distinction between -an action for damages because the plaice -o-f work is unsafe- or because the appliances used are unsafe or insufficient, -and one where although the -place -o-f work b-e safe -and although the appliances, in use are not .defective, still the ¡negligent use and handling of the several .appliances, or the failure of one in authority to give warning o-f such use of it as might result .in injury to- -an employe.

From .the very nature of -such .a -case the employes-could not have known of ¡the danger -in advance, for the-dagger was instantaneously created by the negligent wielding or use of the pick, or by the failure of the -master to give the warning’ which under the circumstances, was incumbent upon him.

The two crews were at work in. placing a. heavy rail on a curve in the ‘ ‘ Y; ” the rail had been attached to an adjoining nail at ope end and they were'engaged in bending or curving the rail toward the gauge, or the point at which it was desired to go.

Appellee and several others each had heavy lining bars and were placed very close together, almost touching each other, iand were prizing against the rail from the outside attempting to curve.it toward the gauge--; Ramsey, the foreman, wa-s just in front of them between the-outer nail upon which they were working and the inner rail, -and had a pick which was sharp at one end and was using that pick ¡by -sticking' the ¡same in the ties at a time when the workmen had bent the rail forward so as to hold the rail in that -position until the men using the lining bans -conld get a new hold with their appliances -so as to further bend the nail toward the gauge, ¡and Ramsey in making a stroke wilth the pointed -end -of hi-s pick so as- to 'bury the same in a tie very pelar to appellee struck the latter in the left shoulder with the -pointed end of the pick. Prom the nature of the work and the great fior-ee and power necessary to bend this heavy rail it was essential that the men using -the Inning bans ¡should be placed very close together, as they were-. It was likewise necessary for the man wielding the pick to be very close and near to the men using the lining bars, and it would seem that under these circumstances it would be the duty of the foreman handling the pick When it became necessary for him to make a ¡stroke with it very near'to any of the workmen right in front of him to -give warning of -such intended stroke.'

The evidence of the plaintiff is that the foreman gave no wanting, that plaintiff -did not see the beginning of the stroke hut saw the pick rapidly descending only when it was two or three feet -above him, and then only had time to turn his head some three or four inches aside so as to receive the ¡stroke in the shoulder instead of in-the head; that even if he had had time he conld not wholly have dodged the pick after he saw it because the men using lining bars with him were, so close to 'him on each side that he could only have-moved a very short distance either way. .

There was evidence for (the defendant to the effct that about the time the -stroke Was made appellee changud his lining bar from his left shoulder to his right shoulder witboult -notice to the foreman, -and that hut for this action the injury would not have occurred. But this was-wholly denied by the plaintiff who said that he did not have the lining bar on- either shoulder at the time hut was-lifting on it with his hands and leaning toward the rail and toward the foreman. This was an issue of fact which was properly submitted to the jury and they evidently took the plaintiff’s view of it.

The claim that there should have been a peremptory instruction on the facts manifestly can not he upheld. Under the evidence the jury was justified in believing either that the injury resulted from the failure to give warning or from negligent handling of the pick.

The claim that the verdict was excessive is clearly without merit. Appellee was then a young man twenty-eight or twenty-nine, and'in -good health; his Collar hone was -broken and the flesh and muscles of his shoulder were lacerated and bruised; he suffered -greatly for several weeks and Was unable for that length of time to do any work and was all that time under the care of his physician. He was thereafter for a number of weeks unable to do any work which required the use of his left arm, and at the time of the trial, some time- after the injury, his left shoulder wféus from ¡one-h'alf to three-fourths of aji inch lower than the right shoulder, and even then ■ he could not use his left -arm to full advantagie.

We see no merit in any of the claims urged for reversal, and the judgment is affirmed.  