135 Ky. 346 | Ky. Ct. App. | 1909
Affirming.
This appeal is prosecuted from a judgment in favor of appellee in an action brought by him against the appellant to recover damages for injuries sustained while in its employment as a laborer digging a ditch.
It appears from the evidence that appellee, under the direction of a superior servant of the city, was engaged in digging a ditch two feet wide and six feet deep in a sandy soil. The ditch was not braced or supported in any way, although it could have been shored up and made safe at little expense, and the sand in the side of the ditch gave way, causing the solid earth on the surface to cavé in and fail on appellee. The argument is made in behalf of the city that appellee, who was a man of mature years and ordinary intelligence, knew, or by the exercise of ordinary caré could have known, the dangers incident to the employment, which it is said were obvious and that he assumed the risk of being injured in the manner he was; and it is further insisted that, as this was a work of construction, and the dangerous place was being made by appellee in the course of his labors, the rule putting on the master the duty of furnishing reasonably safe places for the servant to work in does not apply. Complaint is also made of alleged errors committed by the court in giving and refusing instructions.
Excepting appellee and the physicians who testified in his behalf, no witnesses were introduced by either party. During the examination of appellee, he was asked the following questions: “Q. Now, Mr. Gabbert, at the time the walls of the ditch caved in,
It thus appears that appellee, although not sure that the place was dangerous, felt some uneasiness about it and made the inquiry above set out to his foreman, "Woods, who, in effect, assured him that there was no danger. It cannot be said that the place was so obviously dangerous that no person of common understanding would have continued to work in it, and so the principle announced in Wilson v. Chess-Wymond Co., 117 Ky. 567, 78 S. W. 453, 25 Ky. Law Rep. 1655, Shemwell v. Owensboro & Nashville R. Co., 117 Ky. 556, 78 S. W. 448, 25 Ky. Law Rep. 1671, Duncan v. Grernett Bros. Lumber Co., 87 S. W. 762, 27 Ky. Law Rep. 1039, and other like cases, does not apply. The rule in this state is that when the place in which the servant is engaged in working is not such as imposes upon the master the full duty of providing a safe place, but is somewhat hazardous or dangerous, although not obviously so, or the danger of continuing is not so apparent that a person of ordinary intelligence would not undertake it, and the servant is assured, in substance or effect, by the master, who is present, that it is reasonably safe or that there is no danger, or is directed by him to go on with the work, the servant may recover for injuries received, although the risk or hazard in prosecuting the work is as well known to the servant as it is to the master. When the master is present, the doctrine of equal knowledge and assumed risk, that is sometimes invoked in cases like this to relieve the master, should be sparingly applied. The position of the two is very different, and out of this difference grows the right of the servant to depend upon the master, if
In Shearman & Redfield on Negligence, Sec. 186, this' idea is well expressed in the following language: “The true rule in this as in all other cases is that, if the master gives the servant to understand that he does not consider the risk one which a prudent person should refuse to undertake-, the servant has the right to rely upon his master’s judgment, unless his own is so clearly opposed thereto that in fact he does not rely upon his master’s opinion. So, if the peculiar risk of the act commanded by the master is not obvious, the servant has the right to assume that he is not sent into any unusual peril, and is not bound to investigate into the risk, before obeying his orders. ■ A servant is not called upon to set up his {wn unaided judgment against that of his superiors, and he may rely upon their advice, and still more upon their orders, notwithstanding many misgivings of his own. * * * The servant’s dependent and inferior position is to-be taken into consideration, and if the master gives him positive orders to go on with the work under perilous circumstances, the servant may recover for an injury thus incurred, if the work was not inevitably or immediately dangerous.” So that, if we should put this case upon the ground that the servant was engaged in a work of construction, and was himself by his labor making the danger, and hence the strict rule for the protection of the servant in respect to safe places should not be applied we would yet feel obliged to say that the master in, this case made himself liable by his implied direction to the servant to go on with the-work after his- attention was directed by the servant to the prob
‘‘There are exceptions to the rule that relieved the master from liability when the servant is injured by appliances or tools or unsafe places, when the danger is one that might have been discovered by the servant by the exercise of ordinary care. Among them, and applicable to the facts in this case, is the doctrine that, although an appliance, tool, or place may be unsafe, and the danger discoverable by reasonable or ordinary inspection, yet if the master is present and orders the servant to perform the duty, or the servant depends oh the master’s presumed knowledge of the defective appliance or unsafe place, or relies on the master’s inspection of the premises, and acts under his immediate direction, the'master will be liable.” '
But, aside from this, the character of the work, although constructive, was not such as to relieve the master from the duty of making it reasonably safe. There are a great many works of construction in which it would not be practicable for the master to keep a safe place in which the servant could work while engaged in the undertaking; the nature of the work being such that a continual change is going on with which the servant must familiarize himself and take such precautions as are necessary to avoid accident or injury. To this class of constructive work a lower standard of liability on the part of the master, and in many cases no liability, will be applied than in cases where the work has been finished and is being used in the ordinary conduct of the business. Bailey
' Bnt where an excavation like the one involved in this case is being made, and there is danger that the walls may cave in, and this is or should be in the exercise of ordinary care known to the master, and can easily and with little expense be obviated by shoring them up, there is no reason why the duty of the master to furnish the servant a reasonably' safe place in which to work should not be applied in its fullest extent, unless the danger is so obvious that a person of ordinary intelligence would not undertake it. This doctrine is well supported by numerous authorities, among which we may mention Thompson on Negligence, Secs. 3912, 3913; Bailey on Master & Servant, Sec. 98; American and English Encyclopedia of Law, vol. 20, p. 59; 26 Cyc. 1178; Welch v. Carlucci Stone Co., 215 Pa. 34, 64 Atl. 392, 7 Am. and Eng. Ann. Cas. 299.
As the instructions given by the court conformed to our views of the law applicable to the case as we have expressed them in this opinion, and the verdict is not excessive, the judgment of the lower court must be affirmed, and it is so ordered.