117 S.W.2d 575 | Ky. Ct. App. | 1938
Affirming.
The appellant, J.O. Poole, a steam fitter employed by J. J. Denzinger Company, was injured while at work in a building being remodeled for the Dearing Printing Company, in Louisville. He was struck by a piece of brick knocked out of a wall being demolished by employees of the appellee, Lutz Schmidt, Incorporated, an independent contractor. He sued appellee to recover damages, and the court gave a peremptory instruction against him.
There was a 55-foot brick wall running north and south between an old room and another recently built west of the wall. Poole was installing a heating pipe line from the northwest corner of the old room through the wall at the floor. He saw the men preparing to tear out the wall, erect scaffolds in this room, and hang a tarpaulin back of them so as to protect the Dearing Company's equipment in that east room from dust and debris. But no curtain or barrier was put up on the opposite side or in the west room. The work was done with chisels and hammers. There was a door near the south end of the wall, and a window near the north end. Poole had gone through the door into the new or west room and done some work in its northeast corner, or at the end of the wall opposite that in which the door had been cut. As we understand, the men had but recently started tearing out the wall, beginning at the south end, when Poole had reason to go back to the east room. He saw brick being knocked through the wall, but says they were dropped down close to it on the floor and none were being thrown any distance beyond the wall. Instead of passing through the window, he undertook to go through the doorway. As a matter of precaution he circled around to the west and approached the door almost directly, and when about 20 feet away was struck in the head by a piece of brick knocked out of *588 the wall. It does not appear that the men saw or knew Poole was at work in the room or was going toward the door. He testified, however, that Schmidt, one of the officers of the defendant company, had been in that new room while Poole was working there and knew that men were passing through the door. There is evidence tending to show that the presence of workmen should, in the exercise of ordinary diligence, have been expected to be there.
The plaintiff offered to prove by experienced wreckers that it was the custom in doing such work on such a wall to use hammers weighing four or five pounds instead of fifteen pounds as appellee's men were using, and that under conditions like those present here to hang a curtain behind the wall in order to prevent pieces of brick from being knocked too far. But the court sustained objections to this evidence under the view that the plaintiff had assumed the risk of being struck by the brickbat, and that the custom usually observed in demolishing a wall was immaterial. It was upon that theory of assumed risk that the defendant's motion for a peremptory instruction was sustained and the plaintiff's petition was dismissed.
The case is predicated upon the alleged negligence of the defendant in not placing a barrier or curtain in front of the wall in order to prevent workmen, whom it knew or should have known to be present, from being struck by brickbats. It is argued that the defendant was doing a dangerous thing in a careless way and that one does not assume a risk created by the negligence of another. We may, as did the trial court, concede the doubtful point that the defendant owed the plaintiff the duty of doing those things and failed to observe that duty. See Mattingly's Adm'r v. Hines, Director General,
The term "assumption of risk" has come to have a specific connotation through association with the law of master and servant, but in its broader aspect its common meaning and general application yet prevail. One who chances a risk or risks a chance and loses *589
must suffer the consequences. The doctrine of assumed risk is bottomed on the maxim "volenti non fit injuria," which means that to which a person assents is not regarded in law as an injury. It is to be borne in mind this is not an action by an employee against an employer, in which relation the assumption or risk rule arises, at least in part, out of the contract of employment. In such association the term is distinct from contributory negligence — the one being a matter of contract and the other a matter of conduct. Cincinnati, N. O. T. P. Railway Company v. Goldston,
The judgment is affirmed.