167 Ky. 819 | Ky. Ct. App. | 1916
Opinion of the Court by’
Reversing.
Alleging that lie was struck by an aligning bar, which, through the gross negligence of defendant’s foreman, was improperly loaded, on a hand car and thereby injured, plaintiff, Henry Hall, brought this action against defendant, Wasioto & Black Mountain Railroad Company, to recover damages for personal -injuries. The trial before a jury resulted in a verdict and judgment in his favor for $4,000.00. The defendant appeals.
The first ground urged for a reversal is the failure of the trial court to give a peremptory instruction in favor of defendant. The determination of this question requires a short statement of the evidence. According to the evidence for plaintiff, he was a section hand in defendant’s employ. On the occasion of his injury he mounted a hand car just as it began to move. He took a position on the front end of the car and began to operate the lever with his face to the rear. After proceeding about a mile the aligning bar slipped from the
(1) While a servant assumes the risks ordinarily incident to his employment, he does not assume the extraordinary risks, or those growing out of the negligence of the master, unless the conditions causing the accident and the danger therefrom are known and appreciated by him, or are so obvious that an ordinarily prudent person, under the circumstances, would have observed and appreciated them. C. & O. Ry. Co. v. DeAtley, 159 Ky., 687; Seaboard Air Line Ry. v. Horton, 233 U. S., 492, 58 L. Ed., 1062; Consolidation Coal Co. v. Moore, 166 Ky., 48; Stearns Coal & Lumber Co. v. Calhoun, 166 Ky., 607. Plaintiff’s evidence shows that it was the duty of the defendant, through its foreman, to see that the hand car was properly loaded. Therefore, if the car was improperly loaded the risk, in this instance, was not one ordinarily incident to the service in which plaintiff was engagéd, but one growing out of the negligence of the master, and unless plaintiff knew that the car was improperly loaded and appreciated the danger therefrom, or the improper loading and the danger therefrom was so obvious that an ordinarily prudent person, under the circumstances, would have observed and appreciated them plaintiff did not assume the risk. Applying these principles to the facts, we find that plaintiff did not assist in loading the hand car. On the con
(2) However, a reversal must be ordered on another ground. The trial court’s instructions authorized a recovery by plaintiff if the defendant’s foreman caused or permitted the aligning bar to be loaded upon the hand car “in a careless and negligent manner.” Under the well established rule in this State, a servant in an action for injuries not resulting in death cannot recover for the negligence of a superior working with him in the same department of labor, unless the negligence be gross. C. & O. Ry. Co. v. Laney, 154 Ky., 39; C. & O. Ry. Co. v. Marcum, 136 Ky., 245. As the instruction in
Judgment reversed, and cause remanded for a new trial consistent with this opinion,