154 Ky. 45 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
The Green-Marks Concrete Company was making an. excavation for a new jail to be erected at Greenville; J. 0. Corley was working for them and using a pick and
The proof on the trial showed the facts we have stated. It also showed that the boss after he gave notice that the blast was to be fired, and when the men were about to light the fuse, saw that the wagon had not gotten out of tlic way. He then hallooed to the man at the fuse and told him not to light it. They waited until the wagon was out of the way. Corley and Bandy were walking behind the wagon, and when the wagon got out of the way, went ron down toward the place where they usually went. After they had gotten away, the boss had the man at the fuse ■.to light another match and apply it to the fuse. The man did this and after lighting the fuse, went to his place of safety, and in about four or five minutes, the blast exploded. The boss after the fuse was lighted went to a point about 50 feet from the blast at which he was protected by the bank, and while standing there, if he had looked, could have seen Corley and Bandy, who were standing about 90 feet from the blast but at a point where the bank did not protect them. That he in fact saw them is not shown. If they had gone down to the stable as they had usually done and gone in the stable they would have
It is insisted that the case should have gone to the jury because the boss did not explain to Corley the danger from the blast. But he had told the boss that he knew how to get out of the way; they had been blasting several days. They all knew they were liable to be hit if.' they did not get out of the way, and the boss had on more than one occasion told them to go in the stable. They all understood the danger.
It is also insisted that the case should have gone to the jury on the ground that the boss knew they were in a place of danger and did not take steps to avert the danger to them. But while the boss might have seen them if he had looked, the evidence fails to show that he in fact did know that they had stopped at the point where they were. He had' a right to assume that they would obey his instructions, because it was a part of their duty to warn travelers on the way. After the fuse was lighted, the boss had himself to go .to a place of safety, and it is by no means clear that if he had looked after he got to a place of aafety, that he could then have averted the danger in which Corley and Bandy had placed themselves. We therefore conclude that the circuit court properly instructed the jury peremptorily to find for the defendants.
Judgment affirmed.