189 Ky. 771 | Ky. Ct. App. | 1920
Opinion of the Court by
Reversing.
Appellee and plaintiff below, Isaac Darnell, is a person of mature years and on December 15, 1915, was an employee of tbe appellant and defendant below, Louisville Water Company, and with a crew of hands was as- • sisting in laying a large water- main along the Brownsboro road in or near the corporate limits of the city of Louisville. According to the testimony of plaintiff he was directed by defendant’s foreman to assist another to remove the dirt from around a stone gate post which stood immediately in the way of the ditch which others were digging in which to place the water main. While digging around the post plaintiff reached the bottom of it and it careened and caught him against the bank of the hole he had dug and injured him. To recover damages for the injuries sustained he filed this suit, alleging that defendant had violated the duty it owed him to furnish him a reasonably safe place in which to work and in adopting and directing plaintiff to pursue a dangerous method of performing the work; that defendant knew of such dangers, which were unknown to plaintiff, and by reason of which he was entitled to recover for the dam
The two principal grounds urged against the judgment are, (1) error of the court in overruling defendant’s motion for a directed verdict, which motion was made at the close of plaintiff’s testimony and renewed at the close of all the testimony, and (2) the refusal of the court to submit to the jury, as requested in an offered instruction, the defense of assumed risk. We have closely studied the record, briefs of counsel and the cases relied on therein, as well as many others, and we have unhesitatingly come to the conclusion that the evidence fails to establish any cause of action in favor of plaintiff, and that defendant’s offered peremptory instruction should have béen given. The stone post which plaintiff was assisting to remove had been used as a gate post and was something' like two or two and one-half feet square at the bottom, but smaller at the top and projected above the ground, according to the testimony, between six and eight feet and was embedded in the ground about two and one-half or three feet. It would be difficult to imagne a more simple or less complicated piece of work than that of digging up a post. It is no less complicated than the work of felling a tree. The one performing the work, if he has ordinary intelligence (as plaintiff is shown to possess) knows that the natural law of gravitation would cause the post to careen and fall when the dirt supporting it was removed from around and underneath it, just as a tree would -fall when the trunk is severed from the stump. This court has held in a number of cases, following all' of the authority upon the subject, that a servant of ordinary and average intelligence is conclusively presumed to know or to take notice of the ordinary and well understood laws of nature and to govern himself accordingly in the performance of his work. Furthermore, a servant will also be charged with knowledge of the existence of that which is before his eyes and which he could not help seeing and appreciating. Some of the many cases from
Neither this nor any other court has gone to the extent of holding that the “immediate presence” doctrine, the “specific direction” doctrine or similar ones, could be given the effect to deprive the employee of his reasoning faculties or to permit him to depend, in every contingency, exclusively upon his employer for his personal safety by renouncing all incentive for self preservation, or losing all capacity therefor. So, that if it be assumed that plaintiff in this case was working under the immediate directions of defendant’s foreman and using the method of performing the work as prescribed by him, the defendant would not be liable under the rule applied in the cases relied on. The method employed by plaintiff in removing the dirt from around the post was the digging of a small, narrow trench or excavation next to the post with perpendicular banks in such a manner as to stabilize his position and pen himself in so as to disable him from getting out of the way of the post when it got ready to fall, which he knew it would inevitably do if the dirt was removed from around it and from under it. Plaintiff knew, as one of ordinary intelligence, that in the very nature of things that event would happen sooner or later and that it would most likely occur when his pick caught under the foundation of the post, which he says, it did. Under such circumstances, the method adopted would necessarily be so dangerous as that an ordinarily prudent person would not adopt it and if he did he would become the author of his own disaster and would assume the risk.
We do not agree with counsel that defendant’s foreman directed the method by which the work was to be performed. There is nothing in the testimony showing such to be the case. Plaintiff testified that Mr. Flynn, the foreman, “asked him to go down and take— and help the old man to dig out the post.” The old man referred to was another employee who assisted plaintiff in the work. The foreman was at least one hundred feet from the post at that time and there is no proof that he ever went any nearer to it. There was nothing said about the character of excavation which should be made around the post or that it should be of such a nature as to confine plaintiff so that he would experience difficulty in escaping danger. It is true that plaintiff testified that he scented, danger, and when the foreman
Our conclusion therefore is that the peremptory instruction should have been given, and the judgment is reversed with directions to grant a new trial and for proceedings consistent with this opinion.