142 Ky. 39 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
Appellee, while employed as a foreman in appellant’s car barn and yard in .Lexington, fell into a pit in the yard whereby he was seriously and permanently injured in person and health; for the injuries thus sustained he recovered a verdict and judgment against appellant for $4,000, in damages, and the latter has appealed.
It appears from the evidence that it was the duty of appellee to supervise appellant’s car barn, make repairs upon the cars and, when directed, to run cars from the car barn to appellant’s central station in Lexington. Appellee’s work began at seven o’clock each evening and ended at six o’clock the following morning. The pit into which appellee fell was beneath one of the yard tracks; it was 14 feet in length, 5 feet in depth, and 4 feet 8 inches in width.
The pit was used by appellee in making examinations of and repairing the machinery and works beneath and attached to appellant’s cars; the cars being moved to the track and over the pit for such purposes and the- pit occupied by the employe for seeing and getting at the machinery under and attached to the ear.
On the occasion of receiving his injuries appellee was ordered by appellant’s manager to make some repairs upon a car which had been placed on the track over the pit for that purpose. He at once got into the pit and did the necessary repairing and upon its completion was told that he was wanted at the telephone in the car barn. At that time the car upon which he had been at work was over the pit and covered its entire length and
It is contended by counsel for appellant that it owed ■appellee no duty to keep the pit covered, or to give him notice of the movement of cars in the car barn or yards that he assumed whatever risks and danger he encountered in the performance of Ms duties, and that they were such as ordinarily attended or were incidental to his employment, for which reason, as well as on account of his alleged contributory, negligence, a recovery should have been denied. In support of this contention several authorities are cited and relied on, among them, 'the case of Williams v. L. & N. R. R. Co., 111 Ky., 822, which is declared to be strongly in point.
We do not regard that case or any of those cited by appellant’s counsel as authority in point. In the Williams case the master was guilty of no act of negligence that led to the plaintiff’s injuries and there was neither allegation nor proof that the plaintiff did not know or could not by reasonable care have known of the presence of the ash pit into which he fell. In brief the accident resulting in his injuries was an ordinary casualty which the master, who knew nothing of his danger, could not by ordinary care have prevented. None of the cases cited presents a state of facts at all similar to those of the case at bar. The risk and danger to which appellee was exposed were not ordinary or such as were incidental to his employment. The pit, which by the command of the master’s manager he had just left, was safely covered by the car that stood over it, and when he almost immediately returned to the car by another command of the manager to take charge of it and remove it to the central station, it was uncovered by an act of other ser
While, therefore, the servant assumes all the open and visible risks incident to the employment in which he engages, he does not assume such risks as arise out of the master’s negligence.
We have in the foregoing statement announced, as this court has applied it, the common law rule with respect to assumed risks. Labatt on Master and Servant, Vol. 1, Secs. 270-279; Lou. Cin. & Lex. R. R. Co. v. Cavens’ Admr, 9 Bush 565; L. & N. R. R. Co. v. McMillan, 119 S. W., 221; Meade v. Ashland Steel Co., 125 Ky. 114; Cum. Tel. & Tel, Co. v. Graves, 31 R. 973.
The answer in this case relies upon the defense of assumed risk and contributory negligence; and there is a marked distinction between the two. The defense of assumed risk rests on contract, and by implication, on the fact that as the servant voluntarily exposes himself to the danger attending the service for which he is employed and thereby assumes the ordinary risks incident to such service, he has no right, if any injury results therefrom, to call on the employer to compensate him therefor. On the other hand, the defense of contributory negligence rests on some fault or omission of duty on the part of the servant, and is maintainable when, though the master
There was some evidence which conduced to prove that appellant’s servants by whom the car was moved from over the pit, knew that cars needing repairing were required to be placed there, and that appellee was car repairer; also that they knew, or by the exercise of ordinary care could have known, that the car was still in his charge and that to move it, as was done, 'w;ould uncover the pit and expose him to a risk or danger of which he was ignorant. Moreover, knowledge of the foregoing facts must be presumed to have been in the possession of the appellant’s manager for he sent the car to appellee to be repaired, and to the pit where the repairing was done; and after ascertaining by conversation with him over the telephone that he had made the repairs, ordered him to run it from where it was repaired to the central station. He further knew that appellee would have to return to and get upon the car in order to obey the command; under these circumstances whatever knowledge the manager or the servant who moved the car from the pit may have had, or by the exercise of ordinary care might have obtained, of its being in appellee’s custody and of the exposed condition in which its removal from where appellee repaired it, would leave the pit, must be imputed to appellant. Manifestly, the uhcovering of the pit under the circumstances endangered, the safety of appellee who, in obeying the command of the manager to run the car to the central station, had to return to it in the dark and thereby encounter the risk and danger of falling into the pit. It is admitted that appellee had not been informed of the changed position of the car and his statement that he returned to it in ignorance thereof, and in consequence of such ignorance fell into the pit, was uncontradicted. Whether, as insisted for appellant, he fell into the pit because of negligence on his part, resulting from a failure to exercise ordinary care in approaching it, or whether the exercise of such care would have enabled him to discover its exposed and dangerous
Without quoting the instructions given by the trial court we deem it sufficient to say that while unnecessarily voluminous and elaborate, they were in no respect prejudicial to appellant. If erroneous in any particular, the error was in placing greater emphasis upon the duty of appellee to care for his own safety, than on that of appellant to protect him against injury. If the conclusions we have expressed as to the law of the case be correct, it necessarily follows that the refusal of the trial court to give the peremptory instruction asked by appellant, was-not error.
# Appellant’s counsel complain of the refusal of the trial court to allow, at appellant’s request, a physical examination of appellee by a surgical expert for the purpose of ascertaining the character and extent of his injuries. The motion for the examination was inopportune as it was not made until appellee had concluded the introduction of his evidence. The trial resulting in the judgment appealed from, was the second trial of the case. On the first trial appellee also obtained a verdict and judgment, but for a smaller amount than on the last, and the court granted appellant a new trial; the case had,, however, been pending more than two years when the last trial occurred, yet in all that time, and notwithstanding the evidence as to appellee’s injuries introduced on the first trial, appellant had made no ‘effort to obtain a physical examination of appellee.
Having thus delayed the application it can hot complain that it was overruled. If allowed when asked, it might have prolonged the trial to a unreasonable length and perhaps compelled the re-introduction of much of appellee’s evidence, or made it necessary for him to introduce additional evidence, which, it may have been found, could only be furnished by witnesses not then in attendance upon the court. Manifestly, the application for a physical examination should be based upon an affidavit showing that knowledge of necessary and material facts in respect to the plaintiff’s injuries or condition
In numerous cases of this character we have decided that tbe defendant has not tbe arbitrary right to demand a physical examination of the plaintiff; but tbe application for an order for such examination is a matter which addresses itself to tbe sound discretion of tbe trial court; and on appeal its ruling in granting or refusing tbe order will not be disturbed, unless it is made to appear that there was an abuse of that discretion. Belle of Nelson Distilling Co. v. Riggs, 104 Ky., 1; Belt Electric Line Co. v. Allen, 102 Ky., 551; L. & N. R. R. Co. v. Simpson, 11 Ky., 757; I. C. R. R. Co. v. Clark, 21 R., 1550; L. & N. R. R. Co. v. McClain, 23 R., 1879; Lou. Ry. Co. v. Hartlege, 25 R., 153.
In our opinion tbe ruling of tbe circuit court in refusing to grant tbe order for tbe physical examination of appellee was not an abuse of discretion and not, therefore, error.
The statement made in argument to the jury by appellee’s counsel, of which appellant complains, while improper, was not of sufficient force or importance to have impressed or influenced tbe jury; and there was nothing in it calculated to inflame passion or excite prejudice. In our opinion tbe failure of tbe trial court to exclude tbe statement and admonish tbe jury not to consider it, was not prejudicial to tbe appellant’s rights, or such an error as would justify a reversal.
We also fail to find any material error in tbe rulings of tbe trial court in admitting’ or rejecting evidence; nor can tbe contention of appellant’s counsel that tbe verdict is excessive, be sustained. Tbe nature and extent of appellee’s injuries were fully shown by tbe evidence; two of tbe witnesses were physicians, one of whom attended appellee throughout tbe illness resulting from bis injuries and by physical examination and treatment bad every means of ascertaining bis condition. Prom tbe testimony of tbe physicians and others, it seems apparent that appellee’s injuries were and are of a serious and permanent character; and while tbe jury in awarding him $4,000 damages were liberal, we are not prepared to' say that this amount was excessive.
Wherefore, tbe judgment is affirmed.