Day's Admrx. v. S. C. & Cin. Street Ry. Co.

• Decision Date: 21 November 1919
• Citation: 185 Ky. 766
• Parties: Day's Admrx. v. South Covington & Cincinnati Street Railway Company.
• Court: Kentucky Court of Appeals

Page 766

185 Ky. 766

Day's Admrx. v. South Covington & Cincinnati Street Railway Company.

Court of Appeals of Kentucky.

Decided November 21, 1919.

Appeal from Kenton Circuit Court (Criminal, Common Law and Equity Division).

B. F. GRAZIANI and GALVIN & GALVIN for appellant.

LOUIS F. BROWN for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Reversing.

William Day brought this suit against the South Covington & Cincinnati Street Railway Company to recover damages for personal injuries. At the conclusion of the evidence, the court directed a verdict in favor of the defendant. After prosecuting an appeal the plaintiff died, and the appeal was revived in the name of his administratrix.

The defendant operates a street railroad in the city of Dayton. The electricity that propels its cars is generated at a central plant and distributed by means of a trolley wire stretched about twenty feet above the ground, and running parallel with and in the center of the two rails upon which the cars are moved. The trolley wire is supported by a number of span wires which extend from the trolley wire to the poles on each side of the street, and are attached to the trolley wire by means of a comb and cap. At the time of the accident, Day was employed with other men in removing the old poles which supported the span wires, and replacing them with new poles. He had been engaged in this particular work for five or six weeks. Prior to that time he had driven the trouble wagon for defendant for several months, and had also worked for the Union Light, Heat & Power Company in attaching and fixing its wires. On the occasion of the accident, the company's foreman directed Day to ascend the ladder and cut the span wire near the trolley wire, so that the pole supporting the span wire could be removed. Day placed the ladder against the span wire, and put his foot upon the first rung of the ladder. The foreman said, "Wait a minute." Day stepped down and the foreman placed the ladder against the trolley wire and told Day to cut the span wire about a foot from the trolley wire. Day asked the foreman if it was safe to go up there. The foreman replied that it was safe, and after telling Day that the trolley wire might sag a little, said, "I will guide the ladder and hold you." Day had never done that kind of work with the ladder against the trolley. When he started up, the foreman was standing at the foot of the ladder. He cut the span wire and the ladder began to drop with a sudden jerk. He then threw away the cutters and tried to grab something to hold to. The swaying of the ladder threw him off, breaking his arm and otherwise injuring him. On cross-examination he stated that he had about three years' experience in electrical work. While working for the Union Gas & Electric Company he drove a team most of the time, and handed the tools up to the linemen. He did not climb the poles. While working for the Union Light, Heat & Power Company he was engaged in putting on new cross arms. For the first year that he worked for the defendant he drove the trouble wagon, which was a one-horse wagon with a ladder which could be raised up in the form of an "A," and fastened with a hook. The ladder was used for the linemen to get up and repair the wire. While driving the wagon, he frequently went up on the ladder to hand material to his partner and to help pull the rope used to raise the trolley wire. Before the trolley wire was cut, there was probably eighteen inches of slack between the sections. After the cutting, maybe the slack was thirty-six inches. When he cut the wire, he did not know it would sag that much. Mardis assured him it was safe.

There was no plea of contributory negligence, so that feature of the case is eliminated. Manifestly, if the foreman knew, or by the exercise of ordinary care could have known, that it was dangerous to do the work in the manner directed, then the defendant was liable unless plaintiff assumed the risk. There is a broad distinction between the law of assumed risk as applied to the servant who acts upon his own initiative, and as applied to the servant who not only acts in obedience to a direct command from the vice principal of the master, but receives from him an assurance of safety. In the former case the servant assumes the risk of those dangers which are known and appreciated by him, or which are so obvious that an ordinarily prudent person in his situation would know...