East Tennessee Telephone Co. v. Jeffries

• Decision Date: 28 March 1913
• Parties: EAST TENNESSEE TELEPHONE CO. v. JEFFRIES.
• Court: Kentucky Court of Appeals

154 S.W. 1112

153 Ky. 133

EAST TENNESSEE TELEPHONE CO. v. JEFFRIES.

Court of Appeals of Kentucky.

March 28, 1913

Appeal from Circuit Court, Fayette County.

Action by J. M. Jeffries against the East Tennessee Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Geo. C Webb, of Lexington, for appellant.

Falconer & Falconer, Maurey Kemper, and Chester D. Adams, all of Lexington, for appellee.

SETTLE J.

This is an appeal from a judgment entered upon a verdict whereby appellee recovered of appellant $8,500 damages for the breaking of his leg while in its employ and engaged in the work of installing and taking out telephones; it being alleged in the petition that the injury to appellee's leg was caused by the negligence of appellant in providing him with a stepladder for use in performing its work, which was not reasonably safe for such use, and by reason of its defective condition broke with appellee's weight, threw him to the ground, and fractured his leg.

The answer traversed the averments of the petition and pleaded that appellee knew of the defective condition of the ladder and by continuing its use with such knowledge assumed such risk as resulted therefrom, and, in addition, in the matter of receiving his injury, was guilty of contributory negligence, but for which he would not have been injured. These pleas were controverted by reply.

It appears from the evidence that appellee, when injured, was engaged, in obedience to an order of his superior, in removing a telephone and the wire attachment from a house on Whitley avenue, in the city of Lexington. The following excerpt from his testimony will show how he was injured "I took the telephone off of the wall and set it outside of the house, and went back and took the box out and took the wires out, and went out on the porch to take the wire off the porch and back to the pole. I got the ladder to get the little fixtures off, the little glass knobs of the house, and I went up the ladder, and as I started down the ladder broke at the top and threw me and the ladder over against the fence. *** The ladder sets up this way, with steps on one side and boards on the other, and it came loose at the top where the brace is fastened at the top of the ladder; and when it gave way it gave way on the left-hand side facing the steps; and when it gave way the ladder and I both come over against the fence. *** My legs were in between the boards, the side that leads up to the top, and the steps, and I tried to get my leg out and couldn't; so I raised the steps and pulled my leg out and got up and tried to stand on it and couldn't. *** Broke the bones in the leg."

It appears that appellee's leg was broken three times; each fracture being in the same place. The first occurred in November, 1908, and was a compound fracture; that is, both bones of the leg were broken just below the knee, and one or both bones protruded through the flesh. At that time appellee was in appellant's employ. This fracture gradually healed by a knitting of the bones, but left a small granulated sore in the flesh where the bones had protruded. By August, 1909, appellee could walk about with a cane, and on August 1st again went to work for appellant. On September 3, 1909, the second breaking of his leg occurred, as already described. Following this injury appellee remained in the hospital, or at home, under the treatment of a physician for several months and until the fracture again healed, leaving the knee stiff and compelling him to walk with a crutch. On March 1, 1910, while riding in a market wagon, he fell and broke the leg the third time. After several months in a hospital the injured leg, by the advice of a physician, was amputated, and, in lieu thereof, he now has a cork leg.

When appellee entered appellant's service August 1, 1909, he was furnished, when its use was required in his work, a wagon equipped with necessary tools, including the step-ladder by which he was injured. The ladder, it seems, when not in use, remained on the wagon at appellant's Lexington supply quarters. Appellee testified that he had not seen or used the stepladder from the time he re-entered appellant's service, August 1, 1909, until the day he was injured, September 3, 1909, and did not know of its defective condition. His testimony, and that of one or two witnesses introduced in his behalf conduced to prove that the ladder was kept at appellant's supply quarters and in the custody of its superintendent or manager, who was charged with the duty of keeping it in good condition, and that he knew, or by the exercise of ordinary care could have known, of its defective condition in time to have prevented appellee's injury.

On the other hand, appellant's evidence conduced to show that appellee made some use of the stepladder between August 1st and the date of his injury, and that he knew, or by the exercise of ordinary care might have known, of its defective condition. The appellant seeks a reversal upon two grounds: (1) Error in giving and refusing instructions; (2) excessiveness of the damages recovered.

The trial court refused all instructions offered by appellant and appellee, and, on its own motion, gave the nine instructions found in the record. In our opinion, the instructions numbered 1, 2, 3, and 7 should not have been given; 1, 2, and 7, contain the same error, namely, advised the jury that, in order to find for the appellee, it was necessary for them to believe from the evidence, not only that he did not know at the time of receiving his injury that the ladder was not reasonably safe for use, but also that he could not by the use of ordinary care have ascertained that fact; and that appellant knew, or by the use of ordinary care could have known, that the ladder was not reasonably safe for appellee's use. It is evident from the language of the instructions referred to that the trial court was of opinion that the facts of the instant case brought it within the rule announced in Bogenschutz v. Smith, 84 Ky. 330, 1 S.W. 578, 8 Ky. Law Rep. 376, which, in effect, holds that if the information of the master and servant with respect to the place of work or tools with which to perform the work are equal, and if both are either without fault or in equal fault, the servant cannot recover damages of the master. This rule was first declared in England and later followed in many of the American states; but it has in this state been so modified in cases decided since that of Bogenschutz v. Smith as to have been practically disaffirmed. Pfisterer v. J. H. Peter & Co., 117 Ky. 501, 78 S.W. 450, 25 Ky. Law Rep. 1605; L. & N. R. R. Co. v. Foley, 94 Ky. 224, 21 S.W. 866, 15 Ky. Law Rep. 17; Olive Hill Fire Brick Co. v. Ash, 146 Ky. 253, 142 S.W. 403; Frasier & Foster v. Danner, 146 Ky. 76, 142 S.W. 216; Ky. Freestone Co. v. McGee, 118 Ky. 306, 80 S.W. 1113, 25 Ky. Law Rep. 2211; Angel v. Jellico Coal Mining Co., 115 Ky. 728, 74 S.W. 714, 25 Ky. Law Rep. 108; Ohio Valley Ry. Co. v. McKinley, 33 S.W. 186, 17 Ky. Law Rep. 1028; Int. Coal Co. v. Fannon, 145 Ky. 198, 140 S.W. 163.

The rule, as now held in this jurisdiction, is that the duty of furnishing reasonably safe tools, materials, and place to work is primarily on the master, and that the servant is under no duty to discover defects therein; and, unless he knows of their existence, or they are so patent and obvious that a person of his experience and understanding must have discovered them, he will not be precluded from recovery.

This case is not, therefore, one to which the doctrine of assumed risk can be applied, but one in which the law imposed upon appellant, as master, the primary duty to use ordinary care to furnish appellee, as its servant, with tools and appliances reasonably safe for nis use in performing the work required of him. The law imposed upon appellee no duty of inspection, and he was not required to use ordinary care to ascertain whether the ladder furnished him by appellant was reasonably safe for use. He had the right to presume, when the ladder was furnished him, that such of appellant's servants as were charged...