Wilson v. Chesapeake & O. Ry. Co.

• Decision Date: 30 October 1908
• Citation: 130 Ky. 182,113 S.W. 101
• Parties: WILSON v. CHESAPEAKE & O. RY. CO.
• Court: Kentucky Court of Appeals

113 S.W. 101

130 Ky. 182

WILSON v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

October 30, 1908

Appeal from Circuit Court, Greenup County.

"To be officially reported."

Action by M. B. Wilson against the Chesapeake & Ohio Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. J A. Rardin, A. D. Cole, and W. T. Cole, for appellant.

W. D Cochran, Le Wright Browning, and J. G. Wadsworth, for appellee.

BARKER J.

The appellant, M. B. Wilson, instituted this action to recover from the appellee, the Chesapeake & Ohio Railway Company damages for injuries accruing to him by his inadvertently stepping into a hole filled with hot water, by which he severely scalded his leg. His cause of action is based upon the alleged negligence of the corporation in leaving the pool exposed without guards to prevent the unwary from falling into it. Issue was made upon the alleged negligence of the defendant, and the contributory negligence of the plaintiff was pleaded in bar of his right to recover. The issues were completed by reply controverting the allegation of contributory negligence, and, the case coming on for trial before a jury, after the plaintiff's evidence was all in, the trial court sustained the motion of defendant for a peremptory instruction to the jury to find a verdict in its favor. To review this ruling, the plaintiff has appealed.

The appellant, M. B. Wilson, was employed by the Chesapeake & Ohio Railway Company as a watchman and engine tender at its roundhouse in Russell, Greenup county, Ky. The duties of his employment required his presence at the roundhouse from 6 o'clock in the evening until the same hour in the morning. At about 3 o'clock on the morning of December 31, 1906, Wilson left his place of work, and started to a restaurant outside of appellee's yard, for the purpose of getting something to eat. The restaurant to which he was going was not on appellee's property, nor owned or controlled by it. When at some distance from the roundhouse, and while crossing the railroad tracks in the yard, the appellant stepped into the hot water, with the result that his left leg was scalded and burned. The testimony shows that at the point where appellant was injured the water had accumulated into a pool having collected there by reason of leakage from a pipe which was used to carry steam from the engine room to the place in question, from whence it was conveyed by rubber hose to passenger coaches standing in the yard in order to warm them. Upon the night in question a Pullman car was standing upon the track, and from four to six feet away an engine was standing. Appellant attempted to go through the passageway between them, and while so doing stepped into the pool, and was injured as above set forth. The evidence for the appellant showed that the employes of the corporation were permitted, and did frequently go to the restaurant in question and get meals during the night. It will be observed that, while the relation of master and servant still existed between the corporation and the plaintiff, yet he was not in the active discharge of any duty he owed to the corporation when he left the roundhouse and went to the restaurant. He was going because he was hungry and desired a meal. The master was therefore at the time under no duty to watch over and guard him against any danger he might encounter on his way to and from the restaurant.

In principle this case is very similar to that of Smith v Trimble, 111 Ky. 861, 64 S.W. 915, where it is said: "Appellant, a workman of a contractor preparing certain rooms of appellee's house, was injured by stepping onto a balcony leading from an upper porch to an adjacent room, when the balcony fell, precipitating him to the ground, and injuring him. It was not necessary to use this balcony in going to and from the rooms upon which he was at work, but he did use it, without the knowledge or consent of appellee, for his (appellant's) greater convenience in calling to a workman below. The falling of the balcony was primarily caused by its unsafe and weakened condition, unknown to appellee. *** The question presented here is: What was appellee's duty to appellant under the circumstances? We are of the opinion, and so hold, that appellant while engaged in that work in using such parts of appellee's premises as were reasonably necessary to enable him to do his work was on the premises under the assurance in law by appellee that such parts so necessarily used were reasonably safe for the purposes of such use. But beyond that appellee owed appellant no duty greater than to a stranger or trespasser. And when appellant, without invitation or knowledge of the owner, went into or upon other parts of the premises not necessary for the performance of his labor, he assumed all the risks of doing so. He was neither required, expected, nor allured to be at the place where he was injured, and consequently appellee was under no duty to him to provide there a place of safety." In Louisville & Nashville R. R. Co. v. Hocker, 111 Ky. 707, 64 S.W. 638, 65 S.W. 119, it appears that the plaintiff, a telegraph operator in the employment of the railroad company, left his office and went out into the company's yard upon a call of nature, and while there was injured by the alleged negligence of the corporation in backing a train of freight cars upon him without giving any warning of its approach. In reversing the case, and directing that a peremptory instruction be given, the following language was used by the court: "In this case appellee had no other duties to discharge than to receive and dispatch telegrams at his place in the telegraph office. No duty to the company called him to its yard; and the fact that ...