Day's Admrx. v. South Covington & Cincinnati Street Railway Co.

215 S.W. 944, 185 Ky. 766, 1919 Ky. LEXIS 373

• Court: Court of Appeals of Kentucky
• Decided: November 21, 1919
• Status: Published

Opinions

Opinion of the Court by

William Rogers Clay, Commissioner

Reversing.

William Day brought this suit against the South Covington & Cincinnati Street Railway Company to. recover damages for .personal injuries. At 'the conclusion of the evidence, the court directed a verdict in -favor of the defendant.' After prosecuting an appeal, the .plaintiff died, and the appeal was revived in the name of,his administratrix.'

The defendant operates -a street railroad in 'the city of Dayton. The electricity that propels its. cars is generated at. 'a. central plant and distribiited jay means of a. trolley wire'.stretched about twenty feet above the ground, ánd running parallel with and in the center of the -two rails .upon which tide cars are moved.- The trolley wire is supported by- a number of span wires which extend from'the trolley wire to the poles on. each side of the street, and aré attached to the trolley wire by means of a comb and’ cap. At the time of the accident, Day was .employed' with other' men. in removing the'•. old, . poles which' supported the span wire's, and replacing them with new poles'. He had.been engaged’ih this particular work" for five or six weeks’. Prior to that time' he had driven the trouble wagon for defendant for 'several months, and had also worked for the Union Light, Heat & Power Company in attaching'and fixing it's wires.' On the occasion of the accident, the company’s foreman directed Day'to ascend the ladder and cut "the- span wire' near the trolley wire, so that' the pole supporting'.thie span'wire could be removed.".' Day placed' the,' ladder against the, span wire, and put his foot upon the first, rung of the ladder. The foreman said, “Wait á'ihinute.’’' Day stepped down and the foreman placéd the ladder against the trolley wire and "told Day to ’ cut the'span wife about a foot from 'the trolley' wire. Day’asked the foreman if'if was safe to go úp'theré.' The; foreman re-, plied'that it. wa,s’ sáfe, and after1 telling' Day".tháf the, trolley wire might sag & little,'sáid, “I'will guide the ladder and hold'you.” Day had never done, that kind of' work with the ladder against .the trolley. ; When." hé started'up, the foreman was standing at the ’foot'of the ladder.' He cut the span wire and the ladder began to drop with a Sudden jerk.'! He thén threw away the cutters, j and tried to grab .something to hold to. The swaying, of the ladder’threw him off, breaking his árm/ánd’ otherwise injuring him. Oil cross'-OxahimatiOn "he stated that'he had about three years ’ experience ’ in ‘ electrical work. While workirigfór the Unión Gras '&■ Electric Company, he drove a team most‘of'the time, arid handed/tke' tool’s up" to the liri'eMeh';’ He'did not climb the'‘poles'. "While.' working for the Uniói‘Light, Heat & Powér' Cóhipáriy he was engaged" in putting on new' cross" arms. For the" first year that he worked for the defendant! he drove "the, trouble ' wagon, which 'vtas á óné-horSe' wagori' with' a ladder ^hieh could be'raised up "in the/form of an "“A,’;’ and fastened with'a hook.' The lMdehwas3 used ‘for''the' linemen to get'up' and repair the wire.yWhile driving the wagon, he f requently~went up oh Ule ladder to hand material to his partner and tÓ help .poll the hope used tó raise the trolléy wire. Befóte'' the ttcjllóy wire was' Cut, there was probably eighthéri inches 'bfJsla.Ck between the' sections.' After the ehttirig/^aybé'the, slack was'thirty-' six inches. When he' eñf'fhÓ/'wire'Ó fió',did riot know it would-sag that rimch. Mardis assured'him it was sáfe..

There was no plea of contributory negligence, so that feature of the case' is. eliminated! Manifestly, if'the foreman knew, or by the exercise of ordinary care could have known, that'it was dangerous tó do the work'in.the manner directed, then the defendant was liable unless plaintiff assumed the risk. There is a broad distinction between the law of assumed risk as applied to the servant who acts upon his own initiative, and as applied to the servant who not only acts in obedience to a direct command from the vice principal of the master, but receives from him an assurance of safety. In the former ease the servant assumes the risk of those dangers which are known and appreciated by him, or which are so obvious that an ordinarily prudent person in his situation would know and appreciate them. In the latter case the servant does not assume the risk unless the danger is so obvious and imminent that an ordinarily prudent person would refuse to do the work, and usually this is a question for the jury. Borderland Coal Co. v. Kirk, 180 Ky. 691, 208 S. W. 534. Here, the master was present in the person of his foreman who was superintending the work. The foreman not only directed the plaintiff how to do the work, but actually placed the ladder against the trolley wire. When plaintiff asked if it was not dangerous, the foreman assured him that it was safe. Not only so, but the foreman further said, “I'will guide the ladder and hold you.” In other words, the case is one where the servant not only acted in obedience to a direct command of the master and with an assurance of safety, but also received a promise of protection. Even though it be conceded that plaintiff was charged with knowledge of the fact that the cutting of the span wire would cause the trolley wire to sag and render the ladder unstable, yet in view of the fact that he was entitled to rely upon the superior judgment of the foreman, who not only showed him how to do the work but assured him that the method was safe and promised to protect him, we cannot say that the danger was so obvious that an ordinarily prudent person would have refused to chance it. On the contrary, the question is one about which ordinarily sensible men might entertain a reasonable difference of opinion and was therefore for the jury.

It follows that the court erred in directing a verdict for defendant.

Judgment reversed and cause remanded for a new trial consistent with this opinion.

Whole court sitting, Judges Clarke and Thomas dissenting.