134 Ky. 844 | Ky. Ct. App. | 1909
Opinion op the Court by
— Affirming.
The appellee (plaintiff), Sherwood Kennison, at the time the cause of action stated in his petition arose, was in the employ of the appellant, Mason, Hanger & Coleman Company, a West Virginia corporation. The appellant was engaged in the execuilon of a contract to widen tunnel No. 10 on the line of the Cincinnati, New Orleans & Texas Pacific Railway Company in Pulaski county, Ky. Appellee was an ordinary laborer working in a gang of men under the direction and control of J. W. Davis, appellant’s foreman. At the time of the accident complained of, the appellant was engaged in blasting the roof and sides of tunnel No.” 10 for the purpose of enabling it
Kennison and his co-laborers had been sent out of the tunnel to escape the effect of the impending blast. A railroad train belonging to the Cincinnati, New Orleans & Texas Pacific Railway Company had come up and was waiting to be allowed to go through the tunnel. Of course, it had to be stopped until after the blast had been made and the track cleared of the rock, and debris thrown upon it by the explosion. After the blast was made, the men seem to have been given a signal to return to work, and Kennison and his companions proceeded to clear the track so that the train could pass through the tunnel. Almost immediately after Kennison commenced the work of moving the debris, 'a large stone at the point where the top and the side of the tunnel meet, which had been loosened by the explosion, fell and rolled against appellee, mashing his foot most severely and inflict.-, ing other injuries upon him. To recover damages for this injury appellee instituted this action, alleging in his petition that it was caused by the negligence of the appellant’s employes superior in authority to him who failed and refused to make the necessary inspection after the blast and remove the loosened stone so as to make the place where appellee was required to work reasonably safe. The appellant in its answer denied all the material allegations of the petition, and pleaded contributory negligence in a second paragraph. This affirmative matter of the answer having been denied by reply, the issues were completed. A trial before-a jury resulted in a ver
The court instructed the jury in part as follows:
“No. 1. The court instructs the jury that, when the plaintiff entered into the employment of the defendant, he assumed all the ordinary risks and hazards incident to such employment, unless he was acting under the specific orders of and in the presence of the foreman, Davis, his superior servant, and, if you shall believe from the evidence that the plaintiff was at the time he was injured acting under the direct order of his superior, Davis, then and in that event he only assumed such risks and hazards as were plain and obvious to him under the circumstances surrounding this case. The court further instructs the jury that it was the duty of the plaintiff to exercise ordinary care for his own safety while engaged in the employment of the defendant company. It was the duty of the defendant company before ordering the plaintiff into the tunnel after the blast was fired in the same to have made such tests of the safety- of the tunnel as an ordinarily prudent person would have made under the same or similar circumstances.
“No. 2. You will find for the defendant'in this case unless you shall believe from the evidence that by the gross negligence of the defendant’s agents and servants, superior in authority to the plaintiff,' the plaintiff was injured by a rock or rocks falling on him at the time and place complained of by him, and further believe from the evidence that the dangerous condition of the tunnel at the place where the plaintiff was injured was known to the defendant, its agents and servants superior in authority to the plaintiff, or by the exercise of ordinary care could have
“No. 3. Although you may believe from the evidence that the plaintiff, Kennison, knew of the dangerous condition of the roof of the tunnel or the sides thereof, yet if you further believe from the evidence that he was at the time and place acting under the direct orders of and in the presence of the foreman, Davis, his superior servant, the Mason, Hanger & Coleman Company could not be excused from liability on this ground unless the danger was so obvious that a person of ordinary prudence, acting under like or similar circumstances, would not have obeyed said order, and continued to work thereunder.
“No. 4. If you shall believe from the evidence that after the blast was discharged in the tunnel and prior to the time the plaintiff was injured the foreman, Davis, made or had made such a test as was necessary or reasonably necessary to ascertain the safety of the tunnel, and if after he made such test he in good faith believed same was reasonably safe, and directed the plaintiff after such examination to perform the labors at the place where plaintiff was injured', then in that event the plaintiff can not recover, and, if you so believe, your finding will be for the defendant. ’ ’
The appellant insists that the foregoing instructions are erroneous, and also that it was entitled to a peremptory instruction that the jury should find in its favor. To this we can not agree. It was the duty of the appellant to furnish the appellee (its servant) a reasonably safe place in which to work, and it was its duty to exercise a constant watchfulness that the place in which he was required to work was kept reasonably safe while he was engaged in its service.
In the case of Pfisterer v. Peter & Co., 117 Ky. 501, 78 S. W. 450, 25 Ky. Law Rep. 1605, this court, in an opinion by Judge Burnam, examined the question as to whether or not the servant was bound to exercise ordinary care to avoid being injured when situated with reference to his work as was Kennison, and the doctrine was there announced, after a review of the authorities, that the servant has the right to rely on the master’s exercising ordinary diligence to keep the place where he labors in a reasonably safe condition, and that the servant only assumes such risks as he actually knows, or which are so obvious that a reasonably cautious man would not take the risk thereof.
In Kentucky Freestone Co. v. McGee, 118 Ky. 306, 80 S. W. 1113, 25 Ky. Law Rep. 2211, the doctrine announced in Pfisterer v. Peter & Co., supra, was approved, and from the principle thus established this court has never departed. It is immaterial whether or not the foreman Davis, gave Kennison and his co-laborers orders to rush in and clear up the debris in •order to let the waiting train pass. To remove the ■ rock and thus clear the track was the business of the . servant, and it was his duty to do this without any Special orders from the foreman, and in doing so he was not required to look for danger, but could rely upon the exercise of ordinary diligence by the master to protect him as he worked.
We are not unmindful of the argument made for appellant, that the principle that the master is required to furnish the servant a reasonably safe place in which to work is not applicable to all situations where the relation of master and servant exists. When the danger is created by the work which the servant is engaged in doing, then it can not be said that the master has imposed upon him the duty of a constant supervision in order to protect the servant from danger. But we do not have this case before us. Here the servant had no part in the creation of the danger to which he was exposed and from which he suffered. The work he was doing was not the work which created the danger, but was separate and distinct from it. He was entitled, as an ordinary laborer engaged in removing the rock blown down by the blasting, to have the. supervision of the master to
Judgment affirmed.