175 Ky. 803 | Ky. Ct. App. | 1917
Opinion op the Court by
Reversing.
The appellant, William T. Bradas, was by occupation a painter and had been engaged for nine or ten years, in greater part, as a painter of carriages and automobiles, but was, also, a painter of houses. He
Instruction No. 1, given by the court, is as follows:
“If you believe from the evidence that the work which the plaintiff was doing brought him into a place of danger from the movement of the traveling crane, then it was the duty of the defendant to exercise ordinary care to avoid injuring him and that duty included the duties of having a lookout kept for him and to give*807 him reasonable and timely warning of the movement of the crane, If yon believe from the evidence that the defendant failed to observe any one or more of those duties and that by reason of that failure, if there was any, the crane ran upon the plaintiff and he was thereby injured, then the law is for the plaintiff and you should so find. But unless you so believe from the evidence, then the law is for the defendant and you should so find.”
Instruction No. 2, is as follows:
“It was the duty of the plaintiff to exercise ordinary care for his own safety. If you believe from the evidence that in doing his work he leaned upon the track of the crane and that in so doing, if he did so, he failed to observe that degree of care just mentioned and that by reason of such failure, if any there was, he so helped to cause and bring about the injuries of which he complains as that but for such failure, if there was any, he would not have been injured, then the law is for the defendant and you should so find, even though you should believe from the evidence that the defendant failed to observe some one or more of the duties mentioned in the first instruction as incumbent upon it.”
Instruction No. 3, is as follows:
“If you believe from the evidence that the plaintiff knew that the traveling crane was being operated on the morning of his injury, then it was the plaintiff’s duty to exercise ordinary care for his own safety and to that end to use the faculties of sigh, and hearing in order to discover the approach of the crane and keep out of its way. If you believe from the evidence that he knew that the crane was in use and that he failed to observe any one or more of the duties just enumerated and that by reason of such failure, if any, the crane ran upon him, then the law is for the defendant and you should so find.”
It is the contention of the appellant that the first instruction does not sufficiently define the duties of the appellee in maintaining a lookout for him and giving him timely warning. It is conceded to be a primary rule governing the rights of an employer and employee, that it is incumbent upon the employer to use ordinary care to provide and maintain a reasonably safe place in which the servant may do his work. The close proximity of the appellant to the wheel of the moving crane, in doing the work, which he was directed to do by the foreman; the
Instruction No. 2 defined the contributory negligence on the part of appellant, which would deprive him of any right of recovery. The contributory negligence on the part of appellant, which caused his injury, if such was the fact, was standing with his arm resting upon the track of the crane. "Whether in so doing if he did so, he failed to exercise ordinary care for his own safety, under the circumstances surrounding him, was a question for the jury. The instruction, after stating that it was the duty of the appellant to exercise ordinary 'care for his own safety, then directed the jury in substance, that, if, in doing his work, he leaned upon the track of the crane and, in so doing, failed to exercise ordinary care for his own safety, and so helped to cause and bring about the injuries of which he complains, as but for such failure of ordinary care, he would not have been injured, then the law was for the appellee and to so find, even though the jury should believe from the
The third instruction seems to be simply the giving of an instruction upon contributory negligence in another form from the second, and to be selecting certain specific things, which should be attributed to the appellant as contributory negligence, .and the fault of it lies in imposing upon the appellant the risk of the negligence of the master, in failing to provide the servant a reasonably safe 'place to do his work, which the servant never assumes. The third instruction, upon another trial, should be left out entirely and the qualification added to the second instruction above mentioned.
For the foregoing reasons the judgment is reversed and cause remanded for proceedings consistent with this opinion.