128 Ky. 826 | Ky. Ct. App. | 1908
Lead Opinion
Affirming.
Appellant, as administratrix of John Ballard, instituted this action to recover against the Louisville & Nashville Railroad Company for the death of her intestate. The circuit court sustained a demurrer to the petition, and she appeals.
The facts set up in the petition are these: John Ballard was an apprentice in the defendant’s machine shop at Corbin, Ky. He was an infant, and had been in the shop only three days. There was another apprentice in the shop whose name was Hodge. While Ballard was engaged in his duties Hodge slipped up behind him with a compressed air hose, and turned the high pressure of air from the hose into Ballard’s rectum, the air entering his bowels and rupturing them in such a way that he died shortly afterwards. Hodge had been serving his apprenticeship in the shop for about two years. He turned the air hose on Ballard as a prank. The superintendent of the shop, under whom both Hódge and Ballard worked, had knowingly permitted Hodge and the other apprentice boys in the shop to use this hose in a dangerous manner. The defendant knew that the hose was a dangerous appliance. Hodge had been using the compressed air hose in a playful manner while on duty with the defendant for some time prior to Ballard’s death. The defendant knew this, and permitted it without warning, restraining, or-discharging Hodge. Hodge was a careless, reckless, and stupid boy, and utterly unfit to be working around or handling this dangerous air hose, or dangerous compressed air. The defendant knew this, or could have known it by the
In Sullivan v. L. & N. R. R. Company, 115 Ky. 447, 25 Ky. Law Rep. 1307, 74 S. W. 171, 103 Am. St. Rep. 330, the foreman of a switching crew as a prank put a torpedo on the track in front of the engine to alarm one of the hands working with him. The torpedo went off, and a piece of it struck the man in the leg. He sued the railroad to recover damages. It was held that as the foreman was discharging no duty to the master in placing the torpedo on the track, but was merely playing a prank on one of the men working withhim,the master was not responsible for the acts of the servant not done in his service. In L. & N. R. R. Company v. Routt, 76 S. W. 513, 25 Ky. Law Rep. 887, the fireman on a locomotive intentionally threw a lump of coal at the plaintiff, who was standing on the side of the track, intending to hit him with the coal. In thus throwing the coal he was discharging no duty which he owed to the master, and it was held that the railroad company was not answerable. In Railroad Company v. Cooper, 88 Tex. 607, 32 S. W. 517, the engineer and fireman intended to play a practical joke on Cooper by injecting water into his pockets through a hose, and by mistake turned on hot water and steam. He was badly burned, and brought suit
It is earnestly insisted, however, that this case differs from all of those cited in this: that it is alleged here that Hodge was a careless, reckless, and stupid boy, utterly unfit to handle the air hose; and that the defendant knew ofi his incapacity and knew that he was in the habit of using the hose in a playful, improper, and reckless manner. Ballard and Hodge were fellow servants. The master is responsible only for the acts of the servant within the scope of his employment. The master must exercise ordinary care in the selection of his servants and if he fails to exercise such care, and one of the servants is injured by the incapacity of another servant, the master is liable, but the incapacity of the fellow servant must relate to the duties required 'of him by the master. If the fellow servant is entirely competent to discharge the duties assigned him by the master, and he should, without authority from the master, undertake to do things beyond the scope of his em
The sum of all the facts alleged is about this: That Hodge, in using an air hose as a prank on Ballard, caused his death, when there was nothing in the appearance of the thing to suggest danger to him or to Ballard, and when, in so doing, he was discharging no duty to the defendant. When the master has selected fellow servants competent to discharge the duties assigned to them, he is not responsible for an injury which they may do in a prank outside of their duties, unless they use an instrument that was dangerous, and the master, with knowledge of the deadly character of the thing, has failed to exercise such care as a man of ordinary prudence would exercise in keeping it so that it would not do injury. The master in selecting his servants is not required to take into consideration the pranks one servant may play on his fellow outside of the scope of his duties. The master has no right to control his servant outside of his service as to the pranks he may play on his fellows. As to these, the
Judgment affirmed.
Rehearing
(dissenting). Tbe question in this case is not whether Hodge was acting in tbe service of the company at tbe moment'be killed John Ballard, or whether be was assigned to use tbe compressed air hose, tbe instrument that produced Ballard’s death. The law is tbe master is required to furnish tbe servant a reasonably safe place to work and reasonably safe tools and appliances and reasonably careful servants to work with. It is alleged in the petition that Hodge was not a careful person, but, on tbe contrary, was a reckless and dangerous person; that be possessed such habits for a long time, and tbe defendant knew that be was a reckless and dangerous person, and kept bim in its employment with that knowledge, and failed to warn tbe plaintiff’s intestate of bis dangerous character, and by reason thereof bis intestate lost his life. Tbe gravamen of tbe charge is that the defendant owed deceased tbe duty to furnish bim a reasonably safe person with whom to labor, but, mn tbe contrary, tbe master knowingly furnished bim a
For these reasons, I dissent from the opinion of the court.