Shemwell v. Owensboro & N.R. Co.

• Decision Date: 05 February 1904
• Citation: 117 Ky. 556,78 S.W. 448
• Parties: SHEMWELL v. OWENSBORO & N. R. CO.
• Court: Kentucky Court of Appeals

78 S.W. 448

117 Ky. 556

SHEMWELL v. OWENSBORO & N. R. CO.

Court of Appeals of Kentucky.

February 5, 1904

Appeal from Circuit Court, Logan County.

"To be officially reported."

Action by W. M. Shemwell against the Owensboro & Nashville Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

E. B Drake, for appellant.

Browder & Browder and B. D. Warfield, for appellee.

O'REAR J.

Appellant was the keeper of a water tank and pumping house on appellee's railway. He was the sole agent or servant in charge of, or connected with, that place. His principal duty was to operate the engine that pumped water into a large tank from which the locomotives were supplied. He alleges that on an occasion the smokestack of the boiler connected with his engine became so out of repair that it deflected sparks onto the roof of the little building in which the engine was situated, setting fire to the roof; that he went upon the roof to put out the fire, when it, by reason of its rotten condition, gave way, letting him fall to the ground and injuring him. He sued the railway company for the damages which he alleges he sustained by reason of this injury. The negligence of the railway company of which he complains is that it had negligently permitted the covering of the roof which was made of boards or plank, to be and become rotten negligently permitted a cap of covering of the smokestack to be and remain so that sparks were thrown directly upon the roof, and negligently refused to furnish proper fire hose "to be there in case of fire," and negligently refused to repair or remedy the same "after notice repeatedly," though it had promised to do so; that the roof caught fire because of the negligence above set out; and that, because of the absence of proper fire hose, he was compelled to, and did, go upon the roof to put it out, as above stated. His petition sets out that while he was "putting the last water upon said burning housetop, and while he had his feet securely put in an opening in said roof, and which he thought was sound enough to hold his weight and keep him from falling, said foothold gave way," etc. A demurrer was sustained to the petition. An amended petition was filed, reiterating many of the averments of the original petition, but amplifying them in some particulars. He says that he was employed to look after and protect the buildings at that pumping station; that he believed the building was sufficiently strong to support his weight, and while upon the building, attempting to put out the fire, "he placed his foot upon a crosspiece or beam of said building, which appeared to be sound, so far as he could observe or had any way of knowing, and which he alleges that defendant had permitted to remain there so long that it had become rotten and unsafe [he does not allege that defendant was negligent in failing to learn earlier of the actual condition of this crossbeam], all of which was produced by the said act of the defendant in failing to have a proper and sound roof, when they had agreed to do so, and when they had been informed of its rotten condition, and knew of same, and knew of its increased danger from fire." He alleges "that defendant did know that all these things existed, and promised to repair same only a few days or within a week of said fire, and he did rely upon said promise, and continued to work there," etc. In alleging more specifically the knowledge of the railway company and its promise to repair, he further says in the amendment: "The said covering of said engine house caught fire not more than a week prior to his injury, but he was enabled to put it out by the use of a hose; that he then went to the supervisor of bridges or water stations, or at least to the defendant's agent and employé who was his superior and in control of said water station, and who had supervision of all water stations, and informed him that same had been afire, and also informed him of the dangerous condition of the building, and also informed him that he had been able to put same out, and also informed him of the great danger of a recurring fire, and the possible destruction of said building and said machinery, which was worth $500 or $1,000; and it was then that the said defendant, by its superior officer and supervisor of water stations, then and there agreed and promised to and with this plaintiff to repair and fix same, and instructed him that if said fire occurred again, and he could not reach same with the hose, that he must go upon said building and put same out." These are the strongest allegations of the pleadings for and against appellant upon the point upon which the case was made to turn. The circuit court sustained a demurrer to this amendment also. Appellant declining to plead further, his suit was dismissed, and he has appealed.

Under our code system of practice, the object of all pleadings is to set forth the facts upon which the parties rely in seeking relief or making defense, and to join an issue thereon. Legal conclusions and circumlocutory statements will be ignored in favor of facts explicitly stated in testing the sufficiency of the pleading. The court looks alone to the well-pleaded facts, and applies the law thereto.

Negligence is the failure to do something that the doer, in the exercise of ordinary care, should have done. The employer's duty in this case, it is claimed for appellant, was primarily to furnish him a safe, or at least a reasonably safe, place in which to do his work. With certain recognized limitations this will be accepted. The two latest cases from this court in which that matter is discussed are Pfisterer v....