185 Ky. 766 | Ky. Ct. App. | 1919
Lead Opinion
Opinion of the Court by
Reversing.
William Day brought this suit against the South Covington & Cincinnati Street Railway Company to. recover damages for .personal injuries. At 'the conclusion of the evidence, the court directed a verdict in -favor of the defendant.' After prosecuting an appeal, the .plaintiff died, and the appeal was revived in the name of,his administratrix.'
The defendant operates -a street railroad in 'the city of Dayton. The electricity that propels its. cars is generated at. 'a. central plant and distribiited jay means of a. trolley wire'.stretched about twenty feet above the ground, ánd running parallel with and in the center of the -two rails .upon which tide cars are moved.- The trolley wire is supported by- a number of span wires which extend from'the trolley wire to the poles on. each side of the street, and aré attached to the trolley wire by means of a comb and’ cap. At the time of the accident, Day was .employed' with other' men. in removing the'•. old, . poles which' supported the span wire's, and replacing them with new poles'. He had.been engaged’ih this particular work" for five or six weeks’. Prior to that time' he had driven the trouble wagon for defendant for 'several
There was no plea of contributory negligence, so that feature of the case' is. eliminated! Manifestly, if'the foreman knew, or by the exercise of ordinary care could have known, that'it was dangerous tó do the work'in.the
It follows that the court erred in directing a verdict for defendant.
Judgment reversed and cause remanded for a new trial consistent with this opinion.
Dissenting Opinion
We fully approve of the rule as stated in the court's opinion that where the master gives assurances of safety and protection in the performance .of an ordered, task, the question of whether the danger was so obvious and imminent that no person of ordinary prudence, - would have obeyed is usually a question of fact for the jury. But the word “usually” is not in this connection to be treated as synonymous with “always,” and its use clearly indicates that there are some exceptions to the rule, as is fully attested by many decisions of this court, among which are Lindsey v. Hillenbeck, 27 Ky. L. R. 68; Nunnelly v. Prather, 157 Ky. 157; L. & N. v. Williams, Admr., 175 Ky. 679, and Oyen v. Willings, 183 Ky. 742; and upon facts in some of the cases not nearly so extreme as here.
The assumed risk of standing on a nail keg in the Prather case was not so obviously dangerous as climbing the ladder and cutting the wire in this case, nor was the one created by the moving band in the Oyen case any more so.
Day, at .the time of the accident, was thirty-eight years of age, and as we understand the law, was required to exercise such knowledge and prudence for his own safety, despite any assurances, as are .possessed by ordinary men, and if he failed to'do so he assumed the risk and should not recover.
If he is not to be charged as matter of law with knowledge that it was dangerous, despite any assurances of safety, to reach above his head with one hand and cut the nearer one of two wires that supported the trolley wire which in turn supported the twenty-two feet extension ladder upon which he was standing near the top, with only a man at the foot of the ladder to guide and steady it in its anticipated drop as far as the trolley wire might sag, then the knowledge attributable to ordinary men is very little indeed. And if he is not likewise to be charged as a matter of law with a lack of ordinary prudence despite any assurances of protection then ordinary men are not very prudent.
Surely if the man who in every community is said to have climbed out on a limb of a tree and sawed the limb off behind him had been assured of safety and pro
The case at bar is not, of course, so extreme as that, but it is as surely on the same side of ‘ ‘ ordinary knowledge and prudence,” and so clearly so as not to require the services of a jury in order to determine the nature of plaintiff’s act.
The facts of this case seem to us so very unusual as not to come within any rule that is only usually and not always applicable, and we feel impelled to respectfully dissent from the court’s opinion, because in our judgment it places such a low estimate upon the knowledge and prudence of ordinary men as to indicate an extension of the rule to every case, however obvious the danger, upon evidence of assurances of safety, which we are convinced is not the intention or desire of the court.