178 Ky. 637 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
The appellee and plaintiff below, Myron W. Moorman, was employed by appellant, the defendant below, P. Ban-non Pipe Company, to fire and look after defendant’s "boilers used in operating its machinery for the manufac
About five o ’clock p. m. on June 9,1915, plaintiff, with one Wilson, who was the chief engineer having charge of all of defendant’s machinery, went to the boiler room for the purpose of draining the boilers and cleaning out the pipes, they having received notice that there was soon to be an inspection of the boilers. The machinery was shut down and had been for some little time, but with the boilers partially filled with water. No machinery of any character was in that room except the boilers. The method .of draining the boilers was through a blow-off valve connected up with pipes which ran the water to a ditch or sewer on the outside of the room, but in close proximity to the point where the blow-off valve connected with the pipes, they crossed and formed a T, with an end of one of the pipes connecting with no other object, making what is called in the record a “dead end,” which was stopped with a plug screwed into it, the plug having to be inserted or removed with a wrench. On the top of the boilers was a valve, the plug in which would be removed by turning* a wheel' connected with it. But little and sometimes no water would drain through the valves from the boiler until the valve on top'of the boiler would be opened so as to let in air, enabling the water to flow. Near the wall in the boiler room there was located a ladder made of oak, about thirty inches wide and nine feet long, one end of which rested on the brick floor and the. other against the top part of the brick casing enclosing one of the boilers, and this was the only means by which one could get on top of the boiler. The drainage valves as well as the dead end pipe were located near the side of the ladder and could be seen by one. ascending or descending it. When plaintiff and Wilson'arrived at the boiler room it was soon discovered that the water would not flow, and the-latter suggested to plaintiff that he open the valve on top of the boiler, which he proceeded to do by ascending the ladder, and after accomplishing, his purpose he started to descend the ladder, and,'"as he claims, when he put his foot upon the top step it slipped
The answer traversed the allegations of the petition and contained a plea of contributory negligence and one of assumption of risk. These being denied by a reply formed the issues, and the trial resulted in a verdict and judgment- in favor of plaintiff for the sum of $2,400.00, to reverse which this appeal is prosecuted by defendant.
Several complaints are found in the motion for a new trial, but the grounds for a reversal urged before us are (1) that the court erred in overruling defendant’s motion for a peremptory .instruction; (2) error committed by the court in refusing to set aside the impaneling of the jury and continue the case upon motion made for that purpose because of a statement made by a physician witness for plaintiff while giving his testimony to the effect that he had collected a part of his fee for services rendered to plaintiff “from the insurance company,” it being insisted that this was tantamount to bringing before the jury the fact that plaintiff carried indemnity insurance.
The testimony develops substantially these additional facts: Plaintiff was 37 years of age and a man of at least ordinary intelligence. He had been at work in the particular boiler room for about nine months, and had experience at similar work under other employers. His testimony shows, and there is nothing appearing'to the •contrary, that he was perfectly familiar with the boiler, the pipes and all of the machinery and apparatus connected therewith. His duties were not merely to fire the boilers, but also to supply them and keep them supplied with water, and to drain them when necessary. The •dead end pipe mentioned was primarily for the purpose o’f cleaning out scales from the pipe, and perhaps from the boiler, when. such would collect, which the proof shows to have been more or less frequently, and this was .accomplished by unscrewing the plug from the dead end
In the Whitson case, supra, it is said: ‘‘ The master’s duty to furnish the carpenter a reasonably safe place to work does not require him to cover up such openings or remove such obstructions, which are necessarily incident to the work, so that the carpenter cannot fail to see them except by his own neglect. . . . The obstruction not being concealed, and the- work being performed in the broad daylight, the master has a right to assume that the servant will see, and the law imposes upon the servant the duty to see, such obstructions as are open and obvious to any person making use of his eyes.”
In the Poynter case, supra, this court quoting from the case of Jones v. L. & N. R. R. Co., 95 Ky. 576, said: “The master may be allowed to presume, in the absence
In the case of B. F. Avery & Sons v. Long, 32 Ky. Law Reporter 702, bearing upon fhe assumption of risk, this court said: “If an adult assumes risks incident to the place where he works, and does so with' full knowledge of conditions, then there is no law in this state that makes the master liable for injury, that befalls him on account of the conditions so assumed.”
There is nothing found in the ease of I. C. R. R. Co. v. Williams’ Admr., 171 Ky. 594, and many other similar cases relied upon by appellee, detracting from or qualifying in the least, the doctrine of the above cases, for an examination of the cases relied upon by plaintiff will show an entirely different state of facts. In the Williams case referred to a beam upon which the servant was supposed to work and had a right to be upon had be,en made dangerous by sawing it practically in two without the knowledge of the servant or without his having any reason or grounds to anticipate that such an act would be done or would occur. Others of the cases which plaintiff relies upon are equally distinguishable from the facts of this case. Neither do we attach any importance, to the fact that plaintiff 'was directed by the engineer, his superior servant, to go on top of the boiler and open the valve. This was nothing more than a part of his regular and general duties. He had done this many a time without being specifically directed, and in such cases the direction cannot be given the force to relieve the servant of his duties to exercise his senses to discover the defects the same as though no directions had been given. The giving of directions did not make it any more the duty of plaintiff to perform the act of opening the valve than if they had not been given. His general employment was a standing and continuing direction to do that and other acts necessary to perform his general duties.
A case very much in point is that of McDonald v. Lovell, 82 N. E. Rep. 955, which is a Massachusetts ease, and in which the plaintiff, a servant, sought to recover damages from the master for injuries sustained by falling from a ladder, the foot of which slipped upon the floor. No complaint was made about the condition of the ladder or its arrangement, just as there is none here. It was in the same condition at the time of the accident that it was when plaintiff entered upon the employment, which fact plaintiff knew. It is not even shown in that case that plaintiff knew the ladder would- be likely to slip in the condition it was in, and to that extent it is a stronger case for plaintiff than the instant one. The' court, however, determined that the facts precluded a recovery and affirmed the directed verdict returned in’ favor of the defendant. The defect complained of here,’ according to our view, was not only an ordinary risk-incident to plaintiff’s work and duties, but the record discloses to our minds that he was guilty of such contributory negligence in failing to see and_ observe it as to deprive him of legal grounds of complaint.
Wherefore, the judgment is reversed, with directions to proceed in accordance with this opinion.