Smith v. Bogenschutz

• Decision Date: 26 May 1892
• Citation: 19 S.W. 667
• Parties: Smith v. Bogenschutz.
• Court: Kentucky Court of Appeals

19 S.W. 667

Smith v. Bogenschutz.

Court of Appeals of Kentucky.

May 26, 1892

Appeal from circuit court, Kenton county.

"Not to be officially reported."

This was an action brought by Edward Smith against Charles Bogenschutz to recover for injuries sustained by the plaintiff while in the employ of the defendant.Judgment for defendant.Plaintiff appeals.Reversed.The case has been twice before in this court.See1 S.W. 578;3 S.W. 800.

PRYOR J.

This case has been heretofore in this court, and was reversed because of a defective petition, and on account of erroneous instructions, one of the instructions authorizing a recovery upon a ground not relied on by the plaintiff in any pleading.1 S.W. 578;3 S.W. 800.The plaintiff was a laborer in defendant's foundry, and was injured, as is alleged, by molten iron, poured upon him from the ladle of a colaborer,the two being in the same employment, and in carrying this molten iron in ladles from one part of the building to another.It is alleged in the petition that the gangway over which the workmen passed was narrow and obstructed, so much so as to render it quite dangerous to the employes, when passing upon it with their ladles filled with this molten iron, and the result was the pouring of this lead on the plaintiff, caused by the neglect of the defendant to have the passway widened and the obstruction removed.When the case went back, another trial was had, resulting in a peremptory instruction to find for the defendant, and, if the neglect resulted from the alleged defect in the passway, this court would not hesitate to approve the action of the court below.The appelee had worked in the foundry for four years and knew all about this gangway and the alleged obstruction that had been there for years; and, if the accident occurred from the jostling of the ladle in the hands of a colaborer the appellee is not responsible, as the injury occurred from the risks that are necessarily undertaken when agreeing to perform such service; and the fact that the gangway was after the accident changed was properly excluded from the jury.The appellee doubtless removed all obstructions as a greater precaution against danger, and for this he is to be commenced, instead of punished, as the appellant, besides his knowledge of the passway, and its use by him for a long time assumed the risk of the neglect of his fellow workman, and if injured in that manner, must abide the consequences.The question presented now is, how did this molten iron escape from the ladle?An amended petition was filed, in which among other things, it is alleged that the ladles provided for and furnished the workmen by the defendant(the plaintiff being one of them) were by the defendant or the superintendent of the work delivered to the workmen and the plaintiff, to be used in...