130 Ky. 182 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
The appellant, M. B. Wilson, instituted this- action to recover from the appellee, the Chesapeake & Ohio-Railway Company, damages for injuries accruing to-him by his inadvertently stepping into a hole filled with hot water, by which he severely scalded his leg.His cause of action is- based upon the alleged negligence of the corporation in leaving the pool exposed without guards to prevent the unwary from falling into it. Issue was made upon the alleged negligence of the defendant, and the contributory negligence of the plaintiff was pleaded in bar of his right to recover. The issues were completed by reply controverting the allegation of contributory negligence, and, the case coming on for trial before a jury, after the plaintiff’s evidence was all in, the trial court sustained the motion of defendant for a peremptory instruction to the jury to find a verdict in its favor. To review this ruling, the plaintiff has appealed.
The appellant, M. B. Wilson, was employed by the Chesapeake & Ohio Railway Company as a watchman and engine tender at its roundhouse in Russell, Green-up county, Ky. The duties of his employment required his presence at the roundhouse from 6 o ’clock in the evening until the same hour in the morning. At about 3 o’clock on the morning of December 31,
In principle this case is very similar to that of Smith v. Trimble, 111 Ky. 861, 23 Ky. Law Rep.
The principle involved in the case at bar cannot be distinguished from- that settled in the cases above cited. The plaintiff, when he left his place of duty and undertook to walk across the yard of the railroad company for his own purposes, assumed all of the hazard of the undertaking, and cannot complain that the yard was not kept free from danger for his benefit. As said in the Pendleton Case, supra, the master owed him no duty to anticipate his deviation' from his duty and the possible danger which might arise to him therefrom, and to provide against it. He took things as he' found them, and suffers all consequences of his own error, and cannot make his. master liable therefor.
Judgment affirmed.