Williams v. Louisville & N. R. R. Co.

Opinion of the court by JUDGE BURNAM Affirming. Appellant alleges, in substance, that in appellee’s engine and switch-yard at Lexington, Ky., there is an ash pit twenty feet long, four feet wide, and three and one-half feet deep, located near one of the main thoroughfares in the yard, which is used as a receptacle for cinder and ashes which were removed from the fire boxes of their engines; that it was entirely without guards or other protection; that on the night of the 7th of November, 1898, while engaged in his duties as an employe of appellee in the yard, he fell into said ash pit, and was greatly injured thereby; that appellee did not advise him of the exposed condition [825] of the ash pit during the nighttime. A general demurrer was sustained to the petition. Thereupon several amendments were filed, to which demurrers were interposed and sustained. Finally, appellant declining to plead further,, his petition was dismissed. There is no allegation either in the original or in any of the amendments that appellant did not know of the existence, location, and alleged dangerous condition of the ash pit of which complaint is made. Nor is there any averment that it was defectively constructed, or was unnecessary for the purpose for which it was used. In the absence of these necessary averments,, we are of the opinion that the circuit judge did not err in the rulings complained of. An ash pit is a necessary adjunct of the railroad business in cleaning out engines employed by the company, and it is necessarily used at all hours of the day and night; and persons employed by the railroad company in such yards are bound to take notice ■of the existence, location, condition, and manner of use of such ash pits, and assume all the risk ordinarily incident to such location. 2 Thomp. Neg. p. 108, says: “If the servant knows, or by the exercise of ordinary observation could discover, that the premises in which he is to labor are unsafe or unfit in any particular, and if, notwithstanding such knowledge or means of knowledge, he voluntarily continues in the employment without objection or complaint, he is deemed to assume the risk of the danger thus known or discoverable, and to waive any claim for damages against the master in case it shall result in injury to him.” In Bogenschutz v. Smith, 84 Ky., 336 (8 R. 376) (1 S. W., 578), it was held, in an action by the servant against the master to recover damages for personal injuries caused by the defective condition of the premises in which he was employed, that: “The master must use ordinary care [826] in providing proper and safe premises, as well as proper machinery and materials, for the servant; but if, from any cause, it be not so, and the latter is fully aware of it, and without complaint, or assurance to him from the master that it shall be remedied, he voluntarily continues to use them, then he waives his right, in case of injury, to hold the master responsible, and is without remedy.” Mr. Bailey, in his work on the Master’s Liability for Injuries to Servants (page 165), says: “The servant must use reasonable care in examining his surroundings to observe and take such knowledge of dangers as can be attained by observation. If he fails to do so, the risk is his own. He is bound to use his eyes to see that which is open and apparent to any person using his eyes, and, if the defect is obvious, and suggestive of danger, knowledge on the part of the servant will be presumed. The duty of the master in such cases is not' to see that the servant actually knows. He has a right to rest upon the probability that anybody would know what was- generally to be seen by his own observation. Negligence in a servant often consists in' failing to know as well as in failing to do, and such is always the case when it is his duty to inform himself and know.” Judgment affirmed.