116 Ky. 322 | Ky. Ct. App. | 1903
Opinion of the court bst
Affirming.
The appellee, Melton Wheeler, instituted this action against the appellant, the Henderson Tobacco Extracts Works, to recover damages for a personal injury sustained by him whilst in their employ, which he alleges was due to negligence on their part. The record discloses that appellant is a corporation which has been engaged in the manufacture of an extract from tobacco, which is principally used as a sheep wash. The machine used for this purpose consisted of a stationary iron cylinder, which was set upon a solid brick fóundation two feet six inches in height. Within this cylinder, which extended about three feet above the foundation, there was a brass cylinder, which was revolved within the heavy stationary iron cylinder by steam power, by means of a belt connecting it with an engine. Inside of the brass cylinder, which was about two feet in diameter and fourteen inches deep, a bag was sewed at the top to a wire hoop, into which the liquid extract was poured from a water bucket, and the motion of tbe cylinder, revolving twelve hundred times a minute, threw the extract against the sides of the bag, through which it strained and ran off ¡from the bottom through an iron pipe. The foundation
Whilst it is the duty of a servant to exercise that degree of care which is commensurate with the character of his occupation, in order to protect himself from injury, and if he fails to exercise this care can not recover of the master for an injury to which his own negligence has contributed, it is the primary duty of the master both to provide and keep in a reasonably safe condition the place of work, and this duty is more important than the duty of the servant to use reasonable care to protect himself. See Ashland Coal & Iron Co. v. Wallace, 101 Ky., 626, 19 R., 849, 42 S. W., 744; 43 S. W., 207; Crabtree Coal & Mining Co. v. Sample’s Admr., 24 R., 1703, 72 S. W., 24. We think it is conclusively shown by the testimony in this case that this primary duty has not been complied with by the defendant. Mr. Routsch, the assistant manager of the company, was introduced as a witness, and upon cross-examination testified as follows on this point: “Q. Do you know whether anything was fastened to the top of those steps? A. I do not. Q. That sheep wash, when dropped out of the bucket, is slippery, is it not? A. Yes, sir. Q. Was there any place to set the bucket on except the projecting foundation, and don’t that leave a slippery place? A. Yes, sir. Q. Ought there not to be some place to set the bucket besides where the' foot would get in it?
The testimony shows that whilst appellee had on several occasions performed the services in which he was engaged, during the course of his employment, that it was not his regular service, and that he had not been so engaged, prior to the day on which the accident occurred, for more than a year. It is not claimed that appellee was directed to make any change in the steps or the approaches to the centrifugal in any way, and that he had no authority to do so without direction is testified to by appellant’s” manager. When appellee was directed by appellant’s foreman to carry the sheep wash to the centrifugal and operate it, he was not called upon to make any minute examination of the approaches thereto, but had the right to believe that they were in a solid and substantial condition. The service was dangerous. The slightest loss of balance on his part was liable to occasion the accident for which he sues. Neither the steps nor the foundation afforded a safe place on which to perform such dangerous service. A small ex
Judgment affirmed.
Petition for re-hearing by appellant overruled.