Louisville Water Co. v. Darnell
Decision Date | 03 December 1920 |
Citation | 189 Ky. 771,225 S.W. 1057 |
Parties | LOUISVILLE WATER CO. v. DARNELL. |
Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.
Action by Isaac Darnell against the Louisville Water Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.
Fred Forcht and Chas. W. Morris, both of Louisville, for appellant.
Samuel G. Tate and John C. Tate, both of Louisville, for appellee.
Appellee and plaintiff below, Isaac Darnell, is a person of mature years, and on December 15, 1915, was an employee of the appellant and defendant below, Louisville Water Company, and with a crew of hands was assisting in laying a large water main along the Brownsboro road in or near the corporate limits of the city of Louisville. According to the testimony of plaintiff, he was directed by defendant's foreman to assist another to remove the dirt from around a stonegate post which stood immediately in the way of the ditch which others were digging in which to place the water main. While digging around the post, plaintiff reached the bottom of it and it careened and caught him against the bank of the hole he had dug and injured him. To recover damages for the injuries sustained he filed this suit, alleging that defendant had violated the duty it owed him to furnish him a reasonably safe place in which to work and in adopting, and directing plaintiff to pursue, a dangerous method of performing the work; that defendant knew of such dangers which were unknown to plaintiff, and by reason of which he was entitled to recover for the damages he sustained. The answer contained a denial of the averments of the petition and also affirmative pleas of contributory negligence and of assumed risk. The affirmative defenses were denied by a reply, and upon trial there was a verdict in favor of plaintiff for the sum of $2,500, upon which judgment was rendered, and, defendant's motion for a new trial having been overruled, it prosecutes this appeal.
The two principal grounds urged against the judgment are: (1) Error of the court in overruling defendant's motion for a directed verdict, which motion was made at the close of plaintiff's testimony and renewed at the close of all the testimony; and (2) the refusal of the court to submit to the jury, as requested in an offered instruction, the defense of assumed risk.
We have closely studied the record, briefs of counsel, and the cases relied on therein, as well as many others, and we have unhesitatingly come to the conclusion that the evidence fails to establish a cause of action in favor of plaintiff, and that defendant's offered peremptory instruction should have been given. The stone post which plaintiff was assisting to remove had been used as a gatepost and was something like 2 or 2 1/2 feet square at the bottom, but smaller at the top and projected above the ground, according to the testimony between 6 and 8 feet, and was embedded in the ground about 2 1/2 or 3 feet. It would be difficult to imagine a more simple or less complicated piece of work than that of digging up a post. It is no more complicated than the work of felling a tree. The one performing the work, if he has ordinary intelligence (as plaintiff is shown to possess), knows that the natural law of gravitation would cause the post to careen and fall when the dirt supporting it was removed from around and underneath it, just as a tree would fall when the trunk is severed from the stump. This court has held in a number of cases, following all of the authority upon the subject, that a servant of ordinary and average intelligence is conclusively presumed to know or to take notice of the ordinary and well-understood laws of nature and to govern himself accordingly in the performance of his work. Furthermore, a servant will also be charged with knowledge of the existence of that which is before his eyes and which he could not help seeing and appreciating. Some of the many cases from this court so holding are: American Milling Co. v. Bell, 146 Ky. 68, 141 S.W. 1191; Wallsend Coal & Coke Co. v. Shields' Adm'r, 159 Ky. 644, 167 S.W. 918; North Jellico Coal Co. v. Disney, 161 Ky. 605, 171 S.W. 192; Hassett & Co. v. Richardson, 169 Ky. 342, 183 S.W. 900; New Hughes Jellico Coal Co. v. Gray, 173 Ky. 337, 191 S.W. 451; Oyen v. Willings, 183 Ky. 742, 210 S.W. 464; Pruitt v. Norfolk & Western Ry. Co., 188 Ky. 204, 221 S.W. 552; Hutchison v. Cohankas Mfg. Co., 112 S.W. 899; Wilson v. Chess-Wymond Co., 117 Ky. 567, 78 S.W. 453; and many others referred to in those opinions. Some of the cases cited, if not all of them, also announce the principle that the "safe place" doctrine does not apply when the particular work of the servant, in the prosecution of which he is injured, has for its very purpose the creation of the danger from which the servant was injured; nor does the "safe method" doctrine apply where the servant selected his own method of doing the work. Without incumbering this opinion with a recitation of the facts in each case, we will incorporate from some of them the language of this court embracing the rule just adverted to. In the American Milling Company Case the court said:
In the Shields Case the language is:
In the Disney Case it is said:
"He [the servant] created the danger himself, and his death was due wholly to a condition which he himself brought about."
In the Richardson Case, the court, under facts very similar to those we have here, in excusing the master from liability and directing a peremptory instruction in its favor said:
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... ... 558; ... Proctor Coal Co. v. Beaver's Adm'r, 151 Ky ... 839, 152 S.W. 965; and Louisville Water Co. v ... Darnell, 189 Ky. 771, 225 S.W. 1057. All the cases hold ... that the servant in ... ...
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