Nashville, C. & St. L. Ry. Co. v. Cleaver

• Decision Date: 24 June 1938
• Citation: 118 S.W.2d 748,274 Ky. 410
• Parties: NASHVILLE, C., & ST. L. RY. CO. v. CLEAVER.
• Court: Kentucky Court of Appeals

118 S.W.2d 748

274 Ky. 410

NASHVILLE, C., & ST. L. RY. CO. v. CLEAVER.

Court of Appeals of Kentucky

June 24, 1938

Appeal from Circuit Court, Calloway County.

Action by Hoyt Cleaver against the Nashville, Chattanooga & St Louis Railway Company to recover damages for injuries sustained in the course of plaintiff's employment by defendant. Judgment for plaintiff, and defendant appeals.

Reversed.

PERRY and RATLIFFE, JJ., dissenting.

Walton Whitwell, of Nashville, Tenn., J. H. Coleman and Joe Lancaster, both of Murray, and W. H. Swiggart, of Nashville Tenn., for appellant.

Wells Overby and R. H. Hood, both of Murray, for appellee.

STANLEY Commissioner.

The appellee, Hoyt Cleaver, brought his suit for damages against the appellant, the Nashville, Chattanooga, & St. Louis Railway, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., upon its alleged negligence in failing to furnish a sufficient number of men to do the work in which he was engaged. The affirmative defense was assumption of risk. The appellant seeks to reverse a judgment for $1,500 rendered against it.

Cleaver was an experienced railroad bridge workman and at the time of the accident his crew was working on a bridge at Paris Tennessee. There were four timbers, each weighing perhaps 1,200 pounds, to be moved about 15 feet and placed on a railroad push car. It was customary, according to the plaintiff's evidence, for six or eight men to handle these heavy timbers, but on this occasion the foreman directed Cleaver and three others to load them. Cleaver said to him, "They are too heavy for four," or "It is too heavy for four men; do you mean for us four men to lift them?" To this the foreman responded, "Oh, hell, go on, it will not hurt you; you are just going to load four." Relying upon his "foreman's superior knowledge" he went ahead with the task. While carrying the fourth timber, the plaintiff gave down under its weight and stumbled over a rail. He suffered a severe inguinal hernia. The foreman testified that Cleaver made no such protest, and, of course, that he gave no such direction. He further stated that the usual method of handling such heavy timbers was to roll them to the place of loading and not to carry them. But Cleaver is corroborated by one of his fellow workmen, and, for the purpose of testing the appellant's argument that it was entitled to a peremptory instruction, we, of course, consider only the evidence most favorable to appellee.

Except where there is involved the violation of some federal statute enacted to promote the safety of employees, the defense of assumed risk is available and the law is the same whether the action arises under the common law of the state or under the Federal Employers' Liability Act. York v. Rockcastle River Railway Company, 215 Ky. 11, 284 S.W. 79; Seaboard Air Line Railway Company v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475.

The decision of this case rests on a distinction from general rules. To reach it we shall endeavor to chart the way through the involvements of the law of "assumed risk."

Fundamentally, an employee assumes the normal and ordinary risks of his employment, also the extraordinary risks, when they are so obvious that an ordinarily careful person in his situation would have observed them and appreciated the consequent danger. That is a voluntary assumption. Chesapeake & Ohio Railway Company v. De Atley, 241 U.S. 310, 36 S.Ct. 564, 60 L.Ed. 1016, reversing Chesapeake & Ohio Railway Company v. De Atley, 159 Ky. 687, 167 S.W. 933, for a failure to give an offered instruction; Chesapeake & Ohio Railway Company v. Craig, 229 Ky. 365, 17 S.W.2d 224; Chesapeake & Ohio Railway Company v. Music, 243 Ky. 491, 49 S.W.2d 311; Chesapeake & Ohio Railway Company v. Howard's Adm'x 244 Ky. 838, 51 S.W.2d 461, certiorari denied 287 U.S. 670, 53 S.Ct. 315, 77 L.Ed. 578; Royal Colleries Company v. Wells, 244 Ky. 303, 50 S.W.2d 948.

The servant does not assume the risks arising from insufficient or incompetent co-laborers unless his knowledge of the inadequacy or of their incompetency, actual or imputed, was equivalent to his own assumption of the danger incident to the task. Illinois Central Railway Company v. Langan, 116 Ky. 318, 76 S.W. 32, 25 Ky.Law Rep. 500; Lack Singletree Company v. Cherry, 166 Ky. 799, 179 S.W. 1071. Whether that or any other extraordinary risk in a given case would have been assumed by the ordinarily prudent person is a question of fact to be determined by the jury unless the court is of the opinion that the circumstances made it so manifest, one way or the other, that reasonable minds could not differ, in which event the determination is one of law for the court. Illinois Central Railway Company v. Langan, supra; Fuson v. New Bell Jellico Coal Company, 155 Ky. 96, 159 S.W. 619; Chesapeake & Ohio Railway Company v. Howard's Adm'x, supra; Norfolk & W. Railway Company v. Robinette, 257 Ky. 558, 78 S.W.2d 802.

There comes into use in reaching a decision in this case two correlated rules which in a degree qualify the general principle of assumption of risk, thus stated, in its relation to perceiving a risk of injury and appreciating its danger. Perhaps to speak more precisely it should be said that one rule lessens the responsibility of the servant and increases that of the master, and the other lessens the responsibility of the master and increases that of the servant.

The first of these rules is, generally, that when a workman acts under the command or threat of his employer (or, as here, a vice principal), he does not assume the risk incident to the act to be done or being done unless he certainly knows and appreciates the danger, or it is so obvious or imminent that an ordinarily prudent man would not be willing to encounter it even under orders of one in authority over him; and usually this is a question for the jury. Louisville & Nashville Railroad Company v. Williams' Adm'r, 175 Ky. 679, 194 S.W. 920; Day's Adm'x v. South Covington & C. St. Railway Company, 185 Ky. 766, 768, 215 S.W. 944; Louisville & Nashville Railroad Company v. Davis, 199 Ky. 275, 250 S.W. 978. But if under those circumstances--where there is a direction or command--the peril is not so obvious, or it may be said that the means of knowledge of danger are equal, or that the acceptance of the risk is a matter of exercising judgment or discretion, then the workman may yield up his own opinion and rely upon his employer's presumed superior knowledge of the situation and probable consequences. It is an implied assurance of safety. If under such circumstances he proceeds with the task, performing it by the usual method, and is injured, he may recover damages of the employer if negligence appears, because having yielded up his own judgment to that of the master he is not chargeable with having assumed the risk, for it has been entirely assumed by the master. Risks incurred under coercion are not assumed. 39 C.J. 794, 797, 798; Cincinnati N.O. & T. P. Railway Company v. Jones' Adm'r, 171 Ky. 11, 186 S.W. 897, Ann.Cas.1918E, 122; Illinois Central Railway Company v. Langan, supra; Siler v. Payne, 194 Ky. 618, 240 S.W. 353; Southern Planing Mill v. Hebel, 167 Ky. 165, 180 S.W. 63; Jellico Coal Mining Company v. Helton, 157 Ky. 610, 163 S.W. 744, 745; Consolidation Coal Company v. Deskins, 178 Ky. 663, 199 S.W. 779; Borderland Coal Company v. Small, 160 Ky. 738, 170 S.W. 8; Dryden v. Pogue Distillery Company, 82 S.W. 262, 26 Ky.Law Rep. 528; Long's Adm'r v. Illinois Central Railway Company, 113 Ky. 806, 68 S.W. 1095, 24 Ky.Law Rep. 567, 58 L.R.A. 237, 101 Am.St.Rep. 374; Yellow Poplar Lumber Company v. Bartley, 164 Ky. 763, 176 S.W. 201.

Before adverting to the second rule qualifying the general doctrine of assumption of risk, we may note as of particular interest Illinois Central Railway Company v. Langan, supra. A gang of laborers were directed to move some heavy steel shafts. After they had moved some of the lighter ones they called upon their superior to give them assistance for handling the heavier ones because it was dangerous to undertake to carry them. The foreman exclaimed to appellee and others of the gang: "O, go on!" or something to that effect. In attempting to handle one of the heavier shafts it slipped or was dropped from the hands of the carriers and fell on appellee's foot, severely injuring it. In the course of the opinion the court quoted from Northern Pacific Railroad Company v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755, as follows (page 593):

"The servant does not undertake to incur the risk arising from the want of sufficient and skillful co-laborers, or from defective machinery. *** His contract implies that in regard to these matters his employer shall make adequate provision that no danger shall ensue to him."

Following that we wrote:

"Appellant's next point is that appellee was aware of the danger in his employment resulting in his injury at the time he undertook it, and that his continuing in this employment, with knowledge of the inadequate force, was equivalent to his own assumption of the danger incident to the task. This would be true if the danger was such an obvious one as that the injury was reasonably certain to result, so that none but a reckless man would have undertaken it under the circumstances. We understand the rule on this subject to be that if the danger or risk is such that a prudent man would have refused to do

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