192 Ky. 94 | Ky. Ct. App. | 1921
Opinion of the Court by
— Reversing.
Claiming that while engaged in lifting steel rails for the Louisville & Nashville Railroad Company, he suffered a hernia, which was due to the negligence of the company in failing to furnish a sufficient force to do the work, plaintiff, George Cox, brought suit .against the Director General of Railroads to recover damages. From a verdict and judgment in his favor for $1,000.00, the defendant appeals.. • • •/>
The facts are as follows: Plaintiff was fifty years of age and was working for the company as a section hand. Though he had worked in that capacity at various intervals for a number of years, he had been employed only a few days when the accident occurred. On the morning of the day the accident occurred, the, foreman directed the section crew to load on push cars a quantity of steel rails that were lying on the ground strung along the track. After the cars were loaded, the men pushed them to Col-mar, a distance of about two miles, where the rails were unloaded. The crew consisted of eight men, besides the foreman. Seven men were engaged in loading the rails and shoving the trucks, four men being at one end, and three, including the plaintiff, being at the other end. The plaintiff took this position voluntarily because it was impossible to divide the men equally. The eighth man was out flagging. The foreman was at <Oolmar most of the time, where he assisted in unloading and measuring the rails. Plaintiff weighed about 160 pounds. He knew nothing of the length or the width of the rails. He says that some ,of the rails were partly buried from two to three feet below the grade of the railroad track, and that the beds of the trucks on which the rails were laid were about two feet above the track. For a portion of the way they had to carry the rails up hill. It required stiff lifting to get the rails up, and several times he lifted all he could pack and go along with it. While he worked be
It is the settled rule in this state that a servant is the best judge of his ¡own physical strength, and the duty is on him not to overtax it. Therefore., if he misconceives the amount of strength required to accomplish a task and overstrains himself, the master is not liable. Sandy Valley & Elkhorn Ry. Co. v. Tackitt, 167 Ky. 756, 181 S. W. 349; L. R. A. 1916D, 445; Central Ky. Gas Co. v. Cantrill, 183 Ky. 291, 209 S. W. 1. However, it is insisted that the rule is not applicable to the facts of this case, because there was evidence that the master had furnished an insufficient force to do the» work, and that being true, plaintiff did not assume the risk as it was caused by the master’s negligence. It is sometimes said
Judgment reversed and cause remanded for hew trial consistent with this opinion.