188 Ky. 204 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
It does not appear that the foreman gave any particular directions to the men as to the method which they should adopt, or the manner in which they should remove the old tie and replace it with a new one. The foreman was immediately present when the work began, but before it was finished, he had turned away and went about other duties and was probably at a distance of forty Or fifty feet when the accident to Pruitt occurred.
The plaintiff alleged that he was, at the time of his injury, engaged in interstate commerce, because of the fact of being engaged then in repairing a switch track which was used in interstate commerce and for such reasons was entitled to rely upon the provisions of the Federal Employers’ Liability Act, and this seems to be conceded by the railway company.
After all the evidence had been heard for both plaintiff and defendant, the court sustained a motion for a
The appellant insists that the judgment of the court in directing a verdict against him was erroneous in that the evidence conduced to prove four distinct elements of negligence, which were the proximate causes of his injuries. The particulars wherein it is insisted that the railway company was negligent, are:
(1) The appellant was an inexperienced servant and known to be such by the railway company, and it negligently failed to instruct him as to how to do the work required and to warn him of the dangers incident to it.
(2) The foreman of the railway company failed to supervise the work and to direct the manner of its per- • f ormance.
(3) The railway company negligently failed to provide the appellant with a safe tool with which to work, in that it provided him with a dull pick, and that its dullness caused it to release its hold upon the tie and thereby caused him to lose his balance, and to thrust his foot into the trench, where the end of the tie came in contact with it.
(4) The fellow workmen of appellant were negligent in that they shoved forward the tie without a signal from the foreman to do so, and causing him to thrust his foot into the trench, where it was struck by the end of the tie and thrust against the rail, thereby breaking his leg.
It is insisted that the foregoing asserted acts of negligence, singly and concurring, were the proximate cause of the injury.
The railway company denied all actionable negligence upon its part, and averred that the injury was caused solely by the negligence of appellant, and that he was contributorily negligent, and, also, relied upon the defense of the assumption of the risk by the appellant.
It may be conceded, that, under the Federal Employers ’ Liability Act, where an injury suffered by an employee, engaged in interstate commerce, is attributable to the negligence of the employer, the defense of the contributory negligence of the employee, is not available to the employer, except to diminish the damages, in any case; and, where the injury has been occasioned, in whole or in part, by the failure of the employer to comply with
(a) A presumption, that is founded upon common sense and common experience, is, that an individual employed to do a work will see, understand and appreciate any dangers incident to the work, which an ordinarily prudent and intelligent person of the same age and experience would see, understand and appreciate. The reason of the law for requiring the master to instruct his servant touching his duties, the nature of the work to which he.is assigned, and to warn him of dangers attendant upon its execution, is to give to the servant the information which the master has, or ought to have, and which it is presumed that the servant does not have.
If the servant, in fact, has all the information, which the master could give him, to instruct and warn him
(b) The contention that the foreman was guilty of neglig;enee in failing to stand immediately by all the time that the old tie was being taken out and the new one being placed in its stead, and directing each action taken by the men, and that such negligence was the cause,
(c) If the pick with which appellant was provided was dull and by reason thereof, its hold upon the tie was released, and appellant caused to lose his balance, and thereby resulting in his foot being thrust into the trench, it does not prove negligence upon the part of the railway company. • No duty rests uipon an employer to inspect and keep in repair so simple a tool as a pick, which has been furnished an employee, with which to work. It does not appear that the pick was not in reasonably fair condition for its uses, when provided. No special skill or knowledge is necessary to determine whether a pick is sharp or dull, and appellant had opportunity for inspection of it and was as well qualified as any one to determine whether there was any probable. danger incident to its use, and the probable risks from its use. A simple tool such as a hoe, hammer, chisel, punch, pick and such like, when used, constitutes an exception to the general rule that an employer is obligated to inspect, test and keep in repair the tools and appliances provided for employees, with which to do their work. Stirling Coal & Coke Co. v. Fork, 141 Ky. 41; Ohio Valley Railway Company v. Copley, 159 Ky. 38; Duncan v. Gernert,. 27 K. L. R. 1039; Flaig v. The Andrews Steel Company, 141 Ky. 397. Aside from what is said above, however, the evidence does not even tend to prove that the pick in use by appellant was dull, or, in any way, not reasonably sufficient for the work in which he was injured. No one testifies upon the subject except appellant, and the extent of his testimony is, that his opinion is that it was dull because it pulled out of the tie. And this, fact is not sufficient proof that it was dull, or any way defective. He does not say that ho examined it, or even that it was stuck into the tie with difficulty.
(d) Touching the contention, that the railway company is chargeable with negligence, because, the fellow workmen of appellant, who were pushing at one end of the tie, gave it a shove without any warning to him of their intention to do so and without a signal from the
Judgment affirmed.