162 Ky. 366 | Ky. Ct. App. | 1915
Opinion of the Court by
Reversing.
On tbe 15th. day of July, 1912, John Metcalfe and a number of other persons, as employes of the Burton Construction Company, were engaged in knapping rock. This we understand to he the process of reducing rocks into very small pieces by the use of a small hammer upon them. The appellee and those associated with him performed this labor upon a flat piece of ground at the mouth of a hollow, at the foot of a hill. While engaged
The appellee, in his petition, claimed that the appellant had not used ordinary care to furnish him a safe place in which to work, or to keep it safe while he was engaged in the work, and that appellant, by its agent and foreman, John Wilkerson, was grossly negligent of his safety when he caused Tipton to break the rock on the hill above him in the manner in which he did, and that this negligence was the direct and proximate cause of his injury; that Tipton was performing the work of breaking up the rock by the immediate command and in the presence of Wilkerson, who could, by the exercise of ordinary care, have seen the danger in which ap-pellee was situated from the liability of the stones rolling or being knocked down the hill against him, and knowing of the said, danger, had directed Tipton to break the rock at that place, and in that manner, and gave him, appellee, no warning of the danger, and asked that he be allowed damages in the sum of $2,500.00 against appellant.
The defendant, by its answer, traversed all of the allegations of negligence alleged against it, and, in addition, pleaded that the appellee was negligent himself to such a degree that otherwise the injury would not have happened, by sitting with his back to the hill, where he knew the rocks were being broken up in the manner stated, and, in another paragraph, alleged that the injury incurred by appellee was one of the assumed risks incidental to his employment. The allegations in regard to contributory negligence and assumed risk were ■controverted by reply. The trial resulted in a verdict ■of the jury awarding to appellee damages in the sum of ;$800.00. Appellant having filed grounds for a new trial, ¡and same being overruled, he appeals to this court.
The appellant insists very earnestly that Jesse Tip-ton was a fellow-servant of the appellee, and that the injury to appellee was solely from the act of Tipton, and for that reason there could be no recovery against the appellant. Upon the other hand, the appellee insists that Tipton was not his fellow-servant, and for that reason his injury resulted from a negligent act of another employee of appellant in another field of labor, and that appellaht was responsible therefor. We do not think there can be any serious controversy as to the fact that Tipton was a fellow-servant of the appellee. Tipton was engaged in the same kind of labor, except as to the fineness with which he was required to break the rock; he was working at substantially the same place, and substantially performing the same duty of appellee, and was of the same class with appellee, being a common laborer under the authority of the foreman, Wilkerson. The foreman, Wilkerson, being immediately present, and directing the methods by which the rock should be broken, and having directed Tipton to engage in breaking up the rock with the sledge at the place where he did so, and having directed him as to the manner with which he was to break them, and Tipton having followed the orders and directions of the foreman upon that subject, we are of the opinion that the master was responsible for the injurious effects of the act commanded by Wilkerson, which resulted in the injury to appellee, provided appellee was then exercising ordinary care for his own safety. It was the duty of Tipton to obey the order of Wilkerson, and there is no controversy but what he received the command from Wilkerson to break the rock at the place and in the manner in which he did.
In the case of L. & N. R. R. Co. v. Crady (73 S. W., 1126) this court said:
“For appellant it is claimed that Thomas being in the same line of employment as appellee was a fellow-
In the case of American Machine Co. v. Perry (141 Ky., 374), where one Kuesler was the foreman of the defendant and in charge of the men making some repairs, this court said:
“If Kuesler was sent there with the laborers, and in charge of them, directing the working, he in doing so represented the master. The duty to furnish the servant a reasonably safe appliance to work with is one. not assignable, ahd the master is liable to Perry, if Kuesler rendered the coils unsafe, and when he knew they were in an unsafe condition, assigned Perry to work upon them, the latter being ignorant of the danger. The proof was clear that Perry was a mere laborer, and knew nothing of the danger of the work; that the danger had been created by the master, and if the proper precautions had been taken, the injury to Perry would not have occurred.”
Commencing with the case of L. & N. R. R. Co. v. Collins (2 Duvall, 118), and in a continuous and uniform line of decisions since that time, this court has held that the master is responsible for the gross negligence of a superior, which resulted in the injury of a subordinate employee. Purthermore, when the servants are of the same rank, and engaged in the same field of labor, the master is not responsible for the gross negligence of a fellow-servant resulting in the injury of another servant.
The foreman being the superior of the appellee and his fellow-laborers, the master is responsible for the grossly negligent act of the foreman, which resulted in the injury to appellee. Por these reasons the court did not err in refusing to give an instruction to the jury to find for the appellant.
The negligence in the ease at bar did not consist in the manner in which Tipton broke the rock, but the
It is also the duty of the employer to use ordinary care to secure the safety of his servants from injury, and to adopt a reasonably safe mode in which to do his work, so as to protect his servants from injury.
We will now proceed to discuss the appellant’s contention that the court did not properly instruct the jury. The court gave to the jury six instructions, in the first of which it instructed the jury of what actionable negligence consisted, in the second, it defined ordinary care; in the third, it defined gross negligence; in the fourth it defined the rights and duties of both the appellee and the appellant; and in the fifth, it defined the measure of damages which the jury might allow, if they found a verdict for the plaintiff. The sixth instruction only per-
The first instruction is as follows: “Actionable negligence is the failure to observe for the protection of the interest of another person that degree of care, precaution and vigilance which the circumstances justly demand, whereby such person suffers injury.” It seems to be the fault of this instruction that it opens to the jury too wide a field for speculation, as to what the circumstances of any particular case justly demands. This court has often defined ordinary negligence as being a failure to exercise that care which ordinarily prudent persons would exercise under like or similar circumstances.
While the instruction defining gross negligence is one which has been approved by this court in the case of L. & N. R. R. Co. v. McCoy (81 Ky., 403); I. C. R. R. Co. v. Stewart (63 S. W., 595); C. & O. Ry. Co. v. Broad (77 S. W., 189), and no reversal of this cause could or should be had on account of that instruction. We t.hinlr it is better, however, to give the instruction which is now most usually given, that gross negligence is the absence of slight care.
The fourth instruction is faulty in that it permits the jury to find for appellee if he was injured by the ordinary negligence of the foreman, Wilkerson. By a uniform line of decisions in this court it has been held that the employer cannot be made responsible for the ordinary negligence of a superior employee, which resulted in an injury to a subordinate, employee; that the employer can only be made responsible for the gross negligence of a superior employee, which results in an injury to an inferior one. L. & N. R. R. Co. v. Collins (2 Duvall, 118); Volz v. Railroad Co. (24 S. W., 119); Railroad Co. v. Rains (23 S. W., 505); C., N. O. & T. P. Ry. Co. v. Palmer (33 S. W., 199); Kentucky Distillers & Warehouse Co. v. Schrieber (73 S. W., 769).
The fifth instruction given by the court was erroneous, in that it directed the jury that if it believed from the evidence that the injury complained of by appellee was inflicted on him through the gross negligence of appellant’s foreman, that it might find punitive damages against appellant. (C., N. O. & T. P. Ry. Co. v. Palmer; Kentucky Distillers & Warehouse Co. v. Schreiber, supra.)
The instruction marked “Y” offered by appellant and rejected by the court, was one relating to the safety of the place in which appellee was assigned to work by the foreman, Wilkerson, should have been rejected by the court, because it was entirely abstract in its terms and required the jury to find, before they could find a verdict for appellee, that he was injured by the unsafeness of the place in which he was working, instead of the manner in which all of the evidence showed that the injury came about.
The instruction asked for by appellant and rejected by the court, directing the jury that appellee, in accepting employment from appellant, assumed all of the ordinary risks and dangers incident to such employment, and if they believe from the evidence that he was injured by the ordinary risks and. dangers incidental to this character of work in which he was engaged, they should find for the defendant. This instruction, we think, was properly refused, for while as an abstract statement of the principles of the law appertaining to a case in which it should be given, it is probably correct, but we are not of the opinion that the injury received by appellee was one of the ordinary risks incidental to his employment, and, besides, an injury caused by an act of negligence by the employer, and which would not have occurred but for the negligence of the employer, cannot be considered in any state of case as an assumed risk on the part of the servant. Assumed risk is one which grows out of the contract between the master and servant by which the servant agrees to assume all of the ordinary risks and dangers incidental to the work in which he is to be engaged, but he in no state of case could be presumed to have agreed to assume the risks and hazards of the negligence of his master or the gross negligence of his superior in authority.
The contention of appellant that the court ought to have given the instruction asked for by it upon the subject of appellee’s contributory negligence, is without
For tbe reason above stated, however, tbe judgment appealed from in this case is reversed, and this cause remanded to tbe court below with directions to proceed in conformity with this opinion.