183 Ky. 291 | Ky. Ct. App. | 1919
Reversing.
The Central Kentucky Gas Company was engaged in excavating a deep ditch for the purpose of lowering its pipe line at a certain point in Johnson county, and appellee, Cantrell, with a number of other men, was aiding on the work. While so engaged Cantrell asserts that he so exerted and strained himself in his side and abdomen as to cause hernia, which has practically destroyed his power to perform labor and earn money. This action was instituted in the Johnson circuit court against the gas company to recover damages for the injury,- and a trial resulted in a, verdict and judgment for $2,500.00 in favor of Cantrell, and the ga.s company appeals.
The tools with which Cantrell worked consisted of a common pick and a long-handle shovel. The ditch was about three feet wide at the top,- ten or twelve feet deep and about 18 inches wide at the bottom. Cantrell commenced to work at the surface, and he and two companions jointly sank the ditch to the depth at which he was working at the time of his injury. He was standing on the bottom of the ditch using an ordinary long-handle shovel with which he was throwing the dirt out of the ditch on the top of the ground. There was no platform or other arrangement in the ditch for relaying the dirt, and this is the chief ground of Cantrell’s complaint, because, he says, the plan adopted for the work by the master was not reasonably safe and not the method usually employed by reasonably prudent persons engaged in similar work. No complaint is made of the tools, or of the working- place, except as aforesaid, and it would, therefore, appear that appellee Cantrell based his claim for damages upon the alleged negligence of the company in failing to provide platforms or other relay in the ditch.upon which the dirt might be cast, and again taken up and thrown to the surface.
The gas company insists that the trial court erred to its prejudice in failing to sustain its motion, made at the conclusion of plaintiff’s evidence and again at the conclusion of all the evidence, for a peremptory instruction to- the jury to find and return a verdict for it, and this is the principal ground upon which it seeks a reversal of the judgment. If, as it contends, the facts of this case bring it within the rule that a servant is the best judge of
In the case of Harris v. C. N. O. & T. P. Ry. Co., this court held that a servant is the best judge of his own physical strength, and the duty is on him not to overtax it; if he misconceives the amount of strength' required
The master is sometimes held liable for injury to the servantwhenthe master assures the servant that the place of work is safe, or that the tools or implements are in good condition, and this liability is rested upon the master’s superior knowledge of the facts and conditions, but the master does not know and has- no means of knowing the physical strength or endurance of a servant, except as he sees the servant exert it, yet the servant knows precisely his strength and when it is safe for him to undertake to do a certain work which requires exertion, and in such case the master is not made liable because of the assurance of safety, for the reason that the master does not possess superior knowledge,- but that knowledge is in the possession of the servant.
The court erred in failing to direct the jury to find and return a verdict for the appellant company, and if upon another trial the evidence is in substance the same as upon the last trial, a motion for peremptory instruction by the defendant should be sustained.
Judgment reversed.