Wilson v. Chess & Wymond Co., 117 Ky. 567

117 Ky. 567 | Ky. Ct. App. | 1904

Opinion op the court by

JUDGE O’REAR

Affirming.

This appeal is from a judgment rendered upon a verdict returned in favor of appellee under a peremptory instruction. The action was brought by Wilson, a minor about eighteen years old. by his guardian, for damages sustained by Wilson about November 21, 1898, in falling into a tank of boiling water at appellee’s stave factory. In his petition, plaintiff complained that, alongside of the tank where he was working, ice had formed, making it dangerous for him to stand. His duties were to place unfinished kegs in the water in the tank, where they were boiled or soaked so that the staves could be bent into pennanent curved shape without breaking them. The negligence alleged against appellee is that it, as master and employer, did not furnish suitable and proper covering or protection for the tank, to guard plaintiff against falling into the water, and in permitting the ice to be and remain where plaintiff had to stand in doing his work. It is claimed that the duty of the master was to furnish the laborer a safe place in which to work.

The tank in question was about ten feet long by six feet wide by three and one-half feet deep. It was built of wood, and its top was entirely open. The water, which mostly filled it, was heated with steam to about a boiling heat. By nailing wooden slats across the top of the tank, leaving space enough to put in and take out the kegs, it would have made the situation much safer for the workman.

The duty of the master to furnish a safe, or reasonably safe, place in which the laborer may do his work, is frequently either misunderstood or misapplied. In the first place, the master is not required to furnish an absolutely safe place. If the work is in and of itself dangerous, the master does not insure against such danger. On the contrary, there is nothing better settled than that the servant assumes the ordinary risks and hazards incident to the character of his work. Whatever may be the moral obligation resting upon those who employ people in hazardous work to furnish them the safest possible means to protect them from injury, the law does not forbid a laborer’s undertaking a hazardous employment. with full knowledge of its dangers, if he wants to. If he does, the law leaves the risk upon him, for he has assumed it. There is no feature of the law of negligence better settled than this. The contrivance in use in this case was of the simplest kind. It was merely a large •vat or tub, plainly open at the top. The lowest order of intelligence of a rational man would have comprehended that boiling water would scald the flesh if it came in contact with it, and that ice was slippery. Thei conditions were openly visible to the laborer. He had only to use his «yes, and his most common experience, and his earliest instincts, to fully appreciate the danger of his position.

There was no assurance by the master of the safety of the place, even if such assurance, under the circumstances, could have shifted the liability. There was no promise by the master to provide other appliances of greater safety— no promise to repair. Under these circumstances, the servant assumed the dangers of his employment. He can not, therefore, recover from the employer damages growing out of them.

Kelly v. Barber Asphalt Co. (93 Ky., 363, 14 R., 350) 20 S. W., 271; C. & O. & S. W. R. Co. v. McDowell (16 R., 1) 24 S. W., 607; Mellott v. L. & N. R. Co., 101 Ky., 212, 19 R., 379, 40 S. W., 696; McGhee, Rec. v. Bell (19 R., 267) 39 S. W., 823; McCormick H. M. Co. v. Liter (23 R., 2154) 66 S. W., 761; Pfisterer v. Peter & Co., decided Feb., 2, 1904) 117 Ky., 501, 25 R., 1605, 78 S. W., 450.

Judgment affirmed.