118 Ky. 306 | Ky. Ct. App. | 1904
Opinion of the court by
Reversing.
Appellee, a laborer employed in taking out cars loaded with stone from appellant’s quarry to a nearby railway siding, was injured by stumbling or slipping upon a stone in his pathway, alongside of the track over which the car was being taken. The dimensions of the stone are not certainly proved, but it may be said to have been between the size of a man’s fist and of his hat. It was one of a number of stones scattered along the pathway. Appellee’s duty was to accompany the car, which was pulled out by a wire, rope drawn by a stationary engine, and was moved at the rate of about 50 feet a minute, appellee and the other workmen going along, to chock the wheels in case the rope should break, so as to prevent the car running back into the. quarry. When appellee stumbled over the stone, or fell, he was thrown under the car, and before he could remove his foot from the rails it was crushed by one of the car wheels. He sues to recover
The instructions submitting the issue of negligence to the jury told them, in substance, that if the defendant, appellant, permitted the pathway, where appellee’s duty required him to be, to become obstructed by rocks, and that by reason thereof it was dangerous to its employes-, and that because thereof plaintiff was injured while in the discharge of his duty, it was liable to the plaintiff for his injury, provided the plaintiff himself did uot know of the obstruction, and provided that defendant did know of such dangerous condition, or might have known of it by the exercise of ordinary care. 'The court also told the jury in the second instruction: “If you believe the track or premises of the defendant^ where plaintiff’s duty required him to be, were obstructed by rocks, and the plaintiff knew of such obstruction, if any there was, then you will find for the defendant.”
The court is of opinion that these instructions fail to properly present the duty of the master in the premises, as well as to state the whole law of the servant’s duty to himself. In the first place, the instruction imposed upon the master the duty to furnish the servant a safe place in which to do his work. Such is not the law. The inherent nature of certain kinds of employment is such that to engage in it ■ at all is more or less dangerous. This danger is one against which the master does not contract, and the possible consequences of which his servant impliedly assumes. ■ It is altogether probable that loose stones of varying size would be scattered about a rock quarry. It is equally certain that their presence creates more or less danger to those walking among-them. To the extent that their presence may be rea
For the reasons indicated, the judgment is reversed, and cause remanded for a new trial, under proceedings consistent herewith.