136 Ky. 245 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
This appeal is from a judgment of the Lawrence circuit court for the sum of $983 damages, resulting from an injury received by appellee on account of the derailment of a hand cár belonging to appellant. The hand car was in charge of one Blankinship, appellant's foreman or section boss. On April 7, 1907, appellee, together with a number of others, went to a station by the name of Fullers, Lawrence county, Ky., near which there was a large slip on the railroad right of way. About 3 o’clock in the afternoon appellant’s superintendent, Hiughes, directed Tom Blankinship, one of appellant’s section foremen, to take a hand car and two or three men to aid him, and go to Louisa, and get some dynamite and caps and Dan Blankinship, another of appellant’s foremen, and return to the slip. Appellee was one of the men selected by Tom Blankinship to aid him, the other two were Ben Blankinship and one Brown. They went to Louisa, obtained the supplies mention
Appellant contends that the court should have given a peremptory instruction to the jury to find for it, for the reason that his injuries resulted from the storm or cyclone, an act of God, which no human agency could have reasonably anticipated and provided against. If this were true, as a matter of course a peremptory instruction should have been given. Appellee’s position is that, conceding the storm caused the car to be thrown from the track, appellant’s servant, Tom Blankinship, was guilty of gross negligence in not stopping the car when the angry looking storm was approaching and at the time when his brother and appellee called his attention to it and requested him to stop the car. All the witnesses agree, including Tom Blankinship, that the car could havei been stopped at that time if the brakes had been applied. And all the witnesses but one gave it as their opinion that Tom Blankinship could have stopped the ear when requested the second time, if he had immediately used the brakes. Dan Blankinship testified that he did not request Tom to stop the car on account of the storm, alone, but because the wind was moving the car at such a rate that he was afraid to remain on it until it reached the curve just ahead of them. Tom Blankinship, the foreman, testified that he had taken four or five drinks in Louisa, but was not drunk. The reasonable conclusion to be drawn from the evidence is that he, from the effects of the whisky, had become recldess and fearless, and was
The court’s instructions to the jury were without fault, except in one particular. They placed a higher degree of care upon appellant’s foreman in charge of the car than the law authorized. They made appellant liable for the ordinary negligence of its foreman, when, under the facts of the' case at bar, it was only liable for the gross negligence of its foreman in charge. If appellee did not receive his injuries as tlie result of the gross negligence of Tom Blankinship, appellant is not liable to him in damages. The rule has long been established in this state that it is the duty of the master, or employer, to furnish the servant, or employe, a reasonably safe place, material, and appliances in and with which to perform his labor. This duty devolves upon the master, and he can not delegate it to an agent so as to relieve himself from this legal duty, and he is liable for ordinary negligence in failing to perform this duty. This prin
We find that by the latter part of instruction No. 4 the court told the jury that if they believed “Thomas Blankinship, by failing and refusing to stop said hand car and allow plaintiff to leave it, when he, said foreman, could have stopped it, and when he knew, or by the exercise of ordinary care could have known, that by reason of the storm it was dangerous not to do so, they will find for plaintiff, and unless they so believe they will find for defendant:”
We further find that in the latter part of instruction No. 5, the court told the jury that if they believed from the evidence, “that the injury complained of was caused by an unusual wind storm, or cyclone, which the defendant could not have anticipated and reasonably guarded against, and the injury prevented by the use of ordinary care, they will find that said injury, if any, was caused by ‘act of God,’ and will find for the defendant.”
Appellee’s counsel contend that instruction No. 5 was offered by appellant’s counsel. The record does not sustain this statement; it. is silent upon the subject. There is nothing in the record showing who offered it, therefore the presumption is that it was prepared and given by the court without the request of either party. The error consists in the fact that the court based the right of appellee’s recovery upon ordinary negligence, when it should have been based upon gross negligence.
For this reason, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.