139 Ky. 458 | Ky. Ct. App. | 1906
Opinion of the Court by
Reversing.
The appellee was engaged as a lineman and at the time of the accident complained of was engaged in transferring wires from old and defective poles to new ones. While thus employed an old pole that he had climbed in the performance of his duty for the purpose of unfastening the wires and handing them to a man on the new pole, broke off at the ground and caused the appellee to fall and seriously injure him. From a judgment in his favor, appellant prosecutes this appeal, and urges that several errors prejudicial to its substantial rights were committed by the trial court. The appellee previous to his engagement with appellant had several years experience with other companies in erecting and repairing telegraph wires
' The theory of appellant and the one upon which it Contested the' claim of appellee was that it was his duty to inspect each pole before he climbed it; that' an inspection of the pole that broke would have disclosed its unsafe and dangerous condition, and that before climbing it appellee should have seen that it was sufficiently braced to prevent it from falling; that the dangerous condition of the pole was obvious
Appellee’s contention is that it was not his duty to inspect the poles before climbing them to ascertain whether or-not they were defective, that he did not inspect the pole that fell with him because it was the duty of the foreman to inspect the poles and ascertain that they were safe and that the foreman did inspect the poles and the one that fell, and ordered him to climb the pole and he obeyed his directions. He further testified that none of the linemen paid any attention to the condition of the poles and habitually in the presence of the foreman failed to inspect them, that the foreman by an inspection of the pole could have ascertained that it was unsafe to climb unless supported by braces, nor was he estopped from making this proof by the statements in the paper that he signed and the court properly permitted him to testily. as-to the circumstances under which he signed it.
•Along these lines the case was tried in the lower court. .. ■ • •
The general doctrine that it is the duty of the master to furnish the servant a reasonably safe place in which to wprk has no application to this case, as the work itself was of such a character that the master .could not furnish the servant a reasonably safe place. Seryants aré often engaged in occupations that are in and of themselves unsafe and dangerous, and may be employed to w<?rk with dangerous machinery and in unsafe places without the master incurring any liability, . as said in Wilson v. Chess-Wyman & Co., 25 Ky. Law Rep., 1655: “If the. work is in and of itself dangerous the master does not insure against
It appears from the evidence that the defect in this pole was the result of decay at the top of the ground and the defect was not so obvious that the danger in climbing could be detected without an examination. Therefore, the rule laid down in Shumwell v. Owensboro & Nashville R. Co., 25 Ky. Law Rep., 1671; Wilson v. Chess-Wyman & Co., 25 Ky. Law Rep., 1655; Duncan v. Gernert & Bros. Lumber Co., 27 Ky. Law Rep., 1039, is not applicable. It was announced in those cases that where the danger is obvious to the most ordinary intelligence and of such a nature that the servant cannot fail to be apprised of it by the exercise of ordinary care, the master is not liable for an injury to the servant although he fail to warn him of the danger or even directs him to engage in the particular work, and there are exceptions to the rule that relieve the master from liability when the servant is injured by appliances or tools or unsafe places when the danger is one that might have been discovered by the servant by the exercise of ordinary care, among them and applicable to the facts in this case is the doctrine that although an appliance, tool or place may be unsafe and the danger discoverable by reasonable or ordinary inspection, yet if the master is present and orders the servant to perform the duty or the servant depends on the master’s pre
In this case appellee introduced evidence tending to show that the foreman of appellant had inspected the pole and directed him to climb it, and assuming this to be true, he had the right under the circumstances to rely on bis inspection and in climbing the po.e without examining it himself was not guilty of such contributory neglect as to deny him the right of re eoverv.
On the trial of the case the appellee was asked if it would not have been possible for him by inspecting this pole to have ascertained whether the pole was safe to cl.iii'L.
Objection was made and sustained to the question, and am cvowal made that if .appellee had inspected the pole he would have ascertained that it was defective and dangerous and unsafe for him to ascend without being protected by braces or other means of support. It was error not to have permitted this evi deuce to go to the jury. According to appellant’s view of the case it was the duty of appellee to inspect these pioles, to ascertain whether or not it would be safe to climb them without being braced, and in support of this theory it had the right to prove by appellee that an inspection of the pole would have dis closed its unsafe and dangerous coi.dition. This was really the most material issue in the case and the failure to permit appellee to testify concerning it was prejudicial error.
The judgment is' reversed for proceedings, in conformity to this opinión. ..