Davis v. Chesapeake & O. Ry. Co.

• Decision Date: 29 October 1915
• Citation: 179 S.W. 422,166 Ky. 490
• Parties: DAVIS v. CHESAPEAKE & O. RY. CO.
• Court: Kentucky Court of Appeals

179 S.W. 422

166 Ky. 490

DAVIS v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

October 29, 1915

Appeal from Circuit Court, Greenup County.

Action by J. F. Davis against the Chesapeake & Ohio Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Allan D. Cole, of Maysville, for appellant.

Proctor K. Malin, of Ashland, and Worthington, Cochran & Browning, of Maysville, for appellee.

SETTLE J.

This action was brought by the appellant, J. F. Davis, to recover of the appellee, Chesapeake & Ohio Railway Company, damages for injuries sustained while he was engaged in repairing a leak in its water column at South Portsmouth, Ky. from which he fell during the progress of the work, or after its completion; the fall resulting in the breaking of a bone in his hand, the fracture of two of his ribs, and other bodily hurts of a less serious nature.

It is in substance, alleged in the petition, as amended, that appellant's injuries were caused by the negligence of appellee in failing to furnish him a ladder for use in making the repairs on the water column, and in permitting a valve of the water column to become and remain so defective as that large quantities of water escaped and fell upon the place on the water column where appellant was compelled to ascend and descend in doing the work of repairs necessary thereon, which caused his feet to slip and his body to fall, and resulted in the injuries mentioned; that the work he did upon the water column was performed in pursuance of an order given him by an agent of appellee, his superior in authority; and that the defective and dangerous condition of the water column was not known to him when he began the work of repair required, but was known to appellee.

Appellee's answer traversed the averments of the petition, and alleged assumption of risk and contributory negligence on the part of appellant. On the trial the circuit court, at the conclusion of all the evidence, peremptorily instructed the jury to find for the appellee, which was done, and judgment rendered accordingly. The appellant was refused a new trial; hence this appeal.

The facts, as developed by the evidence heard on the trial, show that appellant was in the employ of appellee as a pumpman at South Portsmouth, and that his duties consisted in running a gasoline engine during the daytime, and keeping in repair the two water columns maintained by appellee at its station in South Portsmouth; these columns being supplied with water pumped into them by the gasoline engine operated by appellant. On the night of October 6, 1911, appellant was informed by appellee's night pumpman, whose name is Smith, that one of the water columns was leaking, and Smith advised him to repair same, as was his duty, whereupon appellant, shortly after midnight, started toward the depot for the purpose of repairing whatever defect there was in the column. While on his way to the depot he got from his mail box a letter from A. B. Allen, his immediate superior, advising him of the defect in the water column and of the necessity of his repairing same. Upon reaching the water column appellant found upon investigation that the leak was caused by a defective valve seat, which he immediately undertook to repair and did repair. In performing this work he climbed up on top of the water column. While there a train came in and stopped at the column. After completing the repairs, appellant attempted to get down from the column by descending onto the tender of the engine standing below thence to the ground. According to his statements the top of the water column was wet, owing to the leaking of water resulting from the defect he had repaired, which rendered the pipe slippery, and that while descending from the column to the tender his foot slipped on the wet pipe, causing him to fall and sustain the injuries complained of.

It is apparent from the evidence that the service performed by appellant in repairing the water column was a part of the work for which he was expressly employed; that the work he did was not performed under the supervision or direction of any superior officer or employé of appellee, but according to his own judgment, after an inspection of the defect. Neither the notice from Smith, his fellow pumpman, of the necessity of making the repairs, nor the order from his superior Allen, received while he was on his way to the water column, contained any direction as to the manner in which the work should be performed. They left to appellant the inspection and ascertainment of the defect, as well as the method of repairing it. Moreover, the evidence shows that appellant was experienced in the work of making such repairs, that he had for a year or more kept the two water columns of appellee at South Portsmouth in repair, and that he was thoroughly familiar with the construction of both and with the means necessary to be used in reaching the place where the repairs in this instance were made. This familiarity with the water columns and the means of making such repairs as the one in question make it reasonably apparent that appellant, at the time of receiving his injuries, was not called upon to meet any danger of which he was ignorant, or without means of ascertaining. He also knew, from an inspection of the defect and pipe before he attempted to descend from the water column, that water was leaking on the pipe by which he attempted to descend, and of its slippery condition, in view of which he is estopped to claim that the risk or danger he encountered from the slippery condition of the pipe in attempting to get down from the water column was unknown to him. He also knew that the risk attending his work was necessarily greater at night than it would have been in the daytime, and if the one lantern with which he was at the time provided gave insufficient light, he ought to have provided himself with a second lantern before undertaking the repairs. It is true, as claimed by appellant, that he was not provided by appellee with a ladder upon which he could have climbed to the defect in the water column and descended therefrom; but he does not allege, nor does the evidence show, that there had ever been a ladder used in making repairs upon the water columns, or that he had, in making previous repairs thereon, used a ladder, or at any time advised appellee of the necessity of its use. So whatever risk attended appellant's climbing to the place of the defect or descending therefrom without the use of a ladder was known to him before and when he undertook the work of making the repairs on the water column.

It is our conclusion that the facts of this case place it in that class of cases to which the rule that the master owes the servant the duty of furnishing him a reasonably safe place to work, or reasonably safe tools with which to perform the work, does not apply, because the servant, by reason of the nature of his employment and the service required of him, is himself charged with the duty of inspection and seeing to it that the place of his work and the appliances with which he must perform it are reasonably safe for its performance. In Daisey v. Wagner et al., 162 Ky. 554, 172 S.W. 942, L.R.A. 1915D, 157, will be found the latest statement of the rule in question as declared by this court. In that case the plaintiff sued to recover of the defendant damages for injuries he sustained by falling from a building upon which he and other employés of the defendant were engaged in placing a tile roof; the negligence complained of being the act of the defendant in requiring a steep roof to be put on without first providing either gutters or hangers, by means of which plaintiff would have been enabled to use ladders upon the roof while engaged in the work of placing and securing the tiles in position. In the opinion it is said:

"The work attempted to be done by appellant was in itself hazardous, and the danger of its performance obvious to a person of even less experience than was possessed by him. Being in charge of the work as foreman, because of his experience and skill, he will not be heard to say that he did not know of the danger. Therefore such risks as would ordinarily be incident to such work must be regarded as having been assumed by him. The duty of the master with respect to the furnishing of a safe place or safe premises for the performance of such work as fell to the lot of appellant can have no application. Therefore the master is not, in a case like this, charged with the duty of exercising ordinary care to discover the dangerous or unsafe place, and is not liable in damages for an injury to the servant because of the dangerous condition, for, the danger being obvious, the duty of protecting himself against it is shifted to the employé. So, assuming in this case that appellant's injuries were received as alleged in the petition, as the conditions which caused them were openly visible to him and the

...