Mellott v. Louisville &Nashville Railroad

JUDGE DtjRELLE delivered the opinion of the court. Appellant, while a carpenter engaged in the service of appellee, was injured in 'his knee, and brought suit against appellee for damages for the injury, which he alleged to have been caused by a defective turntable. The turntable at one end wa>s fixed as on a pivot, and the other end, which was mounted on a truck, could be moved along a curved rail, describing the quadrant of a circle and connecting with ten tracks which diverged from the quadrant. The table was in a pit about two feet deep, surrounded [214] by a stone wall. At each end of the quadrant there was a recess into the straight or radial wall of the pit, to give room for the wheel of the truck which projected beyond the side of the table, and this recess, according to the map, was about five feet wide, and extended into the wall about two feet. When the turntable was in position to engage with track No. 10 at the south side of the quadrant a wedge-shaped space was left between the table and the straight wall, tapering from two feet wide at the “circle wall” to nothing at the center; but when in position to engage with track No. 1, at the east side of the quadrant, the table was parallel with and against the straight wall, except at the recess. Appellant with the other men in shop 16 was called on by the foreman the first day of his employment in that particular shop to move a car to track No. 10. No directions were given as to how it should be moved, but three of the men pushed on the east side and three, including the appellant, pulled on the; south side. On the following day they were directed to move a car to track No. 1, and appellant was one of three "who pulled toward the east side. As the table approached track No. 1 appellant^ not observing his proximity to the wall, was caught by the leg between the table and the angle of the recess and his knee injured, from the effects of which he was confined eighteen days, and went on crutches for some time longer. It is claimed that the turntable was defective in that there was no appliance whereby it could be moved without going into the pit, and that appellant was misled into supposing that the east side of the pit was like the south side. [215] A number of cases are relied on in support of this contention, most of them cases of injury to brakemen by overhead bridges; but there is no parallel between cases of that and kindred classes and the case at bar. The turntable was in good working order, every part of it was fully exposed to' view, and what risk attended its operation was open. and visible. Its movement was slow, the motive power was furnished by him and his fellow servants, but a step was required to place him in absolute safety, and he might, had he so elected, have placed himself on the other side and pushed instead of pulling. “The servant is bound to see for himself such risks and hazards as are patent to observation, and is bound to exercise his own skill and judgment in a measure, and can not blindly rely upon the skill and care of his master.” (Wood on Master and Servant, section 326; Thompson on Negligence, volume 2, section 15; Shearman & Redfield on Negligence, section 94, and Wharton on Negligence, section 214). In order to recover from his master for injuries caused by defective machinery, the servant must show, first, that the appliance with which1 he was working was defective; second, that the master had knowledge, thereof, or ought to have had; and, third, that the servant did not know of the defect or did not have equal means of knowing with the master (Bogenschutz v. Smith, 84 Ky., 338, and cases there cited; C., O. & S. W. R. R. Co. v. McDowell, 16 Ky. Law Rep., 1; and L. & N. R. R. Co. v. Hinden, Ibid. 841). In this case it was not shown that the appliance was defective. The trial court, as we think, properly sustained appellee’s motion for a peremptory instruction, and the judgment is affirmed.