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"We ran right down there between those tracks and right a little of this side of the tracks; he got on the main track; that is tipple here, about there, he got between those where I judge he got on. Before I noticed it he was down here, along here somewhere, and he hollered to me to look out; that I was on the wrong track. I hollered- When I looked around, I guess the train was 10 feet away from him. I had time to holler, but he didn't have time to get off; he was almost off along there. The train hit him on his left leg. I found him laying right there. Q. He was along down here about this green cross somewhere alongside the tipple? A. Yes. Q. And said to you A. Yes, that you were on the wrong track? sir. and saw he was on the wrong track, and you Q. Immediately you turned and looked, told him so? A. Yes, sir. Q. And before he could get out of the way the train struck his And did you go to him immediately after the left leg here at this point? A. Yes, sir. Q. train passed? A. Yes, sir. Q. Where did you find him? A. Right there. Q. Did he hear your warning that he was on the wrong track? A. I believe he did. Q. How far were you from him at the time? A. I was about- I hollered about 20 feet- Q. Did he attempt to heed the warning you gave him? A. Yes, sir. Q. He didn't have time to get out of the way? A. No, sir. Q. What did you see him do when you cried to him that he was on the wrong track where the train was approaching? A. He looked around and saw he was wrong and tried to when it struck him? A. Yes, sir. Q. As you get off. Q. Was he in the act of jumping off saw him, did the train strike him at any place except on the left leg? A. No, sir."

aged, respectively, 18 and 17, went to Clea- [ was the only eyewitness to the accident, and ton, a mining town in Muhlenberg county on tells of it in the following way: appellant's railway line, to call upon two young ladies, Misses Jackson. Finding that the young ladies were out of town, but would return on the afternoon train, they remained there and met them at that train. The young men themselves expected to leave the town on another train which left shortly after the train bringing the young ladies came. After having first made arrangements with a friend to purchase their tickets for them so that they could remain as long as possible with the young ladies and still catch their train, they proceeded with them down the railroad track about 250 or 300 yards in the direction of their home. At this place was a bridge or crossing where they had a view of the railroad track all the way back to the station and about 250 or 300 yards in the other direction from which the train they expected to board was coming. They stayed at the bridge or crossing and talked to the young ladies for about five minutes, when their train appeared around the curve about 250 or 300 yards away. They hastily told They hastily told the young ladies good-bye, and started running down the track towards the station, the train coming behind them going in the same direction. It was about 5:40 p. m., and dark. Morgan was about 10 feet in front of Fentress. At a point about halfway between the bridge and the station there were four tracks, two of which ran under a coal tipple, another known as the main track, and a passing track. The main track was the most eastern, and the passing track was next to it, and between them was a space of a few feet. The headlight of the engine was shining brightly, and when they were near the coal tipple Fentress, thinking that Morgan was on the passing track, and that the train behind them was coming on that track, hollered to him that he was on the wrong track. Morgan at the time was not in fact on the passing track, but was in the space between the two tracks, but, when notified by Fentress that he was on the wrong track, he immediately observed that Fentress himself was on the track upon which the train was coming and which was then within 10 feet of him, and so notified him. Fentress then for the first time observed that he was on the track upon which the train was coming, and made a quick and well-nigh successful effort to jump off the track, but the engine struck his leg, threw him against a switch signal, and killed him.

Again on his main examination he testifies as to the point where Fentress got on the main track as follows:

"Q. You think young Fentress passed on to the main track about the green cross? A. That is where I said he got on-right there. Q. What distance, Mr. Morgan, is it from the point where he got on the track to the point where he was struck? A. 140 feet."

Again on cross-examination he says:

"Q. When you saw the train coming and heard it coming, what did you and Fentress do? A. Went down the track. Q. Who was ahead? run down? A. Between the main track and the A. I was. Q. What part of the track did you west side, on the west. Q. How far was the train away from you when you started to run down to Cleaton to get on the train? A. It was coming around the curve up there from Bevier. Q. About how far was that from where you were standing? Did you see that measured? A. No, sir. Q. It would be a mere guess to don't know how far it was? A. No, sir. Q. say how far it was? A. Yes, sir. Q. You Can you say approximately how far it was in your opinion? Was it as much as 200 yards? A. Yes, sir; it is that much. Q. 300 yards? A. I think between 200 and 300 yards. Q. Between 200 and 300 yards? And you were 200 yards from the station on that bridge? A. Yes, sir; what I guess. Q. That is your opintween 200 and 300 yards coming towards you ion? A. Yes, sir. Q. You saw the train bewhile you were standing on the bridge and then it was about 200 or 300 yards from the station where you were to get on the train? A. Yes, sir. Q. Well, you wanted to beat the train to the station, didn't you? A. Yes, sir. Q. When you left the little bridge where you left these young girls, did you both start together, or were you ahead when you started, or do you remember that? A. I don't remember. Q. Did you outrun him? A. Yes, sir;

This is an action by the personal representative of Fentress against the railroad company for damages. On the trial in the lower court the plaintiff recovered a judgment and verdict for $2,500, and the railroad company appeals. The only ground of reversal is that the company was entitled to a peremptory instruction, and that is the only question necessary to be determined.

told you you were on the wrong track? A. That he was mistaken is too plain for arguAbout 10 feet. Q. About 10 feet? And you ment, for he notified Morgan that he was saw that car, did you not, about along here? Where did he tell you you were on the wrong on the wrong track, thinking at the time track? Were you on this track at all? A that Morgan was on the passing track, and No, sir. Q. You were between the tracks, were evidently thought that he himself was on you not? A. Yes, sir. Q. You were on no the track that the train was not on, and track, were you? A. I was not. Q. Where was he when he hollered and said you were on never discovered his mistake until too late the wrong track, having this point in view, and to save himself. In the first place, it was this up here? A. It was about there. Q. About sheer recklessness for him, with knowledge there? A. Yes, sir. Q. Mark that with a piece that the train was approaching, to be on eiof chalk. (Point was marked on the diagram with a green cipher.) Q. You were right here ther track; and in the next place, being about 10 feet ahead of him? A. Yes, sir. Q.himself upon one track, and assuming that And he was there when he first said, 'Look out, the train would run on the other, was his Morgan; you are on the wrong track,' didn't he? A. Yes, sir. Q. What did you say to mistake, and not that of the company. him? A. I said you are wrong. Q. Now, then, is it not true that he immediately, upon your saying that, tried to get off that main track? A. Yes, sir. Q. And was struck by the engine at once? Isn't that a fact? A. Yes, sir. Q. Do you know how far he was from the engine when he turned and said you were on the wrong track? A. I would say about 10 feet." Morgan, as stated, was the only eyewit-running at an excessive rate of speed. The ness to the accident, and this is all the testimony showing how it happened. The engineer, however, testified that he was in his cab maintaining an outlook, and that he did not see the decedent at all, and did not know of his injury until he had reached a station several miles north of Cleaton, where the news had come over the wire. He further explains that from his position in the cab if one had come on the track in front of his train within 35 feet of the engine, by reason of certain obstructions, he could not have seen him.

[1] It will be seen from this evidence that these two young men, with full knowledge that the train was approaching, deliberately started out on or alongside the railroad track to beat it to the station so that they might board it, knowing when they started that the train was only about twice as far from the station as they were, and presumably knowing that it was running much faster than twice as fast as they could go and would overtake them at some point before they reached the station. In this situation they deliberately ran alongside of and on the railroad tracks, and, while the evidence is somewhat confusing as to when Fentress got on the main track, it was pure recklessness and inexcusable negligence for him, under these conditions, to have gotten on it at any point.

It is perfectly clear, however, from the conversation between the two young men, that the real cause of the accident was that Fentress was on the main track and thought the train was coming up behind him on the passing track, and never discovered his mistake until the engine was within ten feet of him, when it was too late for him to save himself. So that the case resolves itself into the question whether he, being in full possession of the fact that the train was approaching from the rear, can recover from the railroad company because he was mis

[2] It is not a pertinent inquiry in this case whether the signals were given or not. Fentress knew of the approach of the train, and no signals could have warned him of anything he did not know. Nor is it important whether he was a trespasser at the time or a licensee, or whether the train was

whole evidence shows that he, with full knowledge that the train was coming, negligently ran along and upon the track ahead of it, and that negligence, coupled with his mistaken opinion that the train was running on the other track, was the proximate cause of his death.

The case of Louisville & Nashville R. R. Co. v. Trower's Adm'r, 131 Ky. 589, 115 S. W. 719, 20 L. R. A. (N. S.) 380, was where a mail carrier who was under the duty of putting mail on the local passenger train was killed. A special train was running on the time of the local passenger, and Trower heard the train coming, presumably thinking it was the local, and knowing of the approach of the train, he undertook to cross the track in front of it and was killed. His administrator recovered a judgment in the circuit court, and this court, in reversing that judgment and directing a verdict for the defendant, said:

"He whose negligence is the proximate cause of the injury is the one at fault in law, and is train too fast by the station was not the proxithe loser. Appellant's negligence in running its mate cause of the intestate's death. His own negligence in going upon the track with knowledge of the defendant's negligence, or rashly or recklessly ignoring its negligence and 'taking chances,' was the proximate cause of his injury; for, but for it, appellant's negligence In all would have been harmless as to him. the cases cited, where the fact was undisputed that the injured party knew of the train's approach, and heedless of it, or miscalculating the results, went upon the tracks just in front of authorities we gather the principle of law to be the train, a recovery was denied. From these that it is such negligence for one to go upon the railroad track just in front of a rapidly approaching train, which he sees or knows to be then coming in, that for his injuries inflicted by it he cannot recover from the railroad company, not because it was free from negligence, but because his own negligence was the immedithe undisputed facts of this case bring it withate and nearest cause of his injury. We think in that principle, and the peremptory instruction should have been granted."

In that case the authorities were exten

Allan D. Cole, of Maysville, for appellant. Proctor K. Malin, of Ashland, and Worthington, Cochran & Browning, of Maysville, for appellee.

from them that whenever one knows that ar train is approaching, and either because of his recklessness or by reason of his mistaken judgment undertakes to cross in front of it and is killed or injured, there can be no recovery, because, however negligent the SETTLE, J. This action was brought by company may have been, his own conduct is the appellant, J. F. Davis, to recover of the the proximate cause of the accident. There appellee, Chesapeake & Ohio Railway Comare many cases in this state where this gen-pany, damages for injuries sustained while eral proposition has been laid down. Fen- he was engaged in repairing a leak in its tress knew of the danger, and, so knowing, water column at South Portsmouth, Ky., got on the track, assuming the train was coming from behind on another track. This error in judgment on his part furnishes no ground of recovery. Thompson on Negligence, 1 Sup. 27, § 186.

There should have been a directed verdict for the defendant.

The judgment is reversed, with directions to grant appellant a new trial, and for further proceedings consistent herewith.

DAVIS v. CHESAPEAKE & O. RY. CO. (Court of Appeals of Kentucky. Oct. 29, 1915.) 1. MASTER AND SERVANT 213 — INJURIES TO SERVANT-ASSUMPTION OF RISK.

Where plaintiff, who was employed to keep a railroad water tower in repair, was not directed as to the method of work, and knew that water dripped down the spout, he assumed the risk of injury in attempting to descend by that means, notwithstanding the railroad company furnished him no ladder.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 559-564; Dec. Dig. 213.]

2. MASTER AND SERVANT 222 INJURIES TO SERVANT-ORDERS OF SUPERIOR.

Where it was plaintiff's business to keep in repair a railroad water tower, the fact that his superior notified him of a defect which he was proceeding to repair will not, on the theory that he was acting under the direct orders of his superior, render the railroad company liable for injuries occasioned by slipping on the wet spout, down which water had run.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 648-651; Dec. Dig. 222.]

3. MASTER AND SERVANT

204-INJURIES TO SERVANT-ASSUMPTION OF RISK. Where plaintiff, after repairing a slight defect in the valve of a railroad water tower, slipped from the wet spout in descending, the fact of the defect, which was of a temporary character, does not show that the railroad company was negligently using defective appliances, which would, under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]), preclude it from taking advantage of the defense of assumption of risk, as the only defects precluding defenses are those endangering employés.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. 204.]

from which he fell during the progress of the work, or after its completion; the fall resulting in the breaking of a bone in his hand, the fracture of two of his ribs, and other bodily hurts of a less serious nature.

It is, in substance, alleged in the petition, as amended, that appellant's injuries were caused by the negligence of appellee in failing to furnish him a ladder for use in making the repairs on the water column, and in permitting a valve of the water column to become and remain so defective as that large quantities of water escaped and fell upon the place on the water column where appellant was compelled to ascend and descend in doing the work of repairs necessary thereon, which caused his feet to slip and his body to fall, and resulted in the injuries mentioned; that the work he did upon the water column was performed in pursuance of an order given him by an agent of appellee, his superior in authority; and that the defective and dangerous condition of the water column was not known to him when he began the work of repair required, but was known to appellee.

Appellee's answer traversed the the averments of the petition, and alleged assumption of risk and contributory negligence on the part of appellant. On the trial the circuit court, at the conclusion of all the evidence, peremptorily instructed the jury to find for the appellee, which was done, and judgment rendered accordingly. The appellant was refused a new trial; hence this appeal.

The facts, as developed by the evidence heard on the trial, show that appellant was in the employ of appellee as a pumpman at South Portsmouth, and that his duties consisted in running a gasoline engine during the daytime, and keeping in repair the two water columns maintained by appellee at its station in South Portsmouth; these columns being supplied with water pumped into them by the gasoline engine operated by appellant. On the night of October 6, 1911, appellant was informed by appellee's night pumpman, whose name is Smith, that one of the water

Appeal from Circuit Court, Greenup columns was leaking, and Smith advised him County.

Action by J. F. Davis against the Chesapeake & Ohio Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

to repair same, as was his duty, whereupon appellant, shortly after midnight, started toward the depot for the purpose of repairing whatever defect there was in the column. While on his way to the depot he got from

his mail box a letter from A. B. Allen, his immediate superior, advising him of the defect in the water column and of the necessity of his repairing same. Upon reaching the water column appellant found upon investigation that the leak was caused by a defective valve seat, which he immediately undertook to repair and did repair. In performing this work he climbed up on top of the water column. While there a train came in and stopped at the column. After completing the repairs, appellant attempted to get down from the column by descending onto the tender of the engine standing below, thence to the ground. According to his statements the top of the water column was wet, owing to the leaking of water resulting from the defect he had repaired, which rendered the pipe slippery, and that while descending from the column to the tender his foot slipped on the wet pipe, causing him to fall and sustain the injuries complained of.

insufficient light, he ought to have provided himself with a second lantern before undertaking the repairs. It is true, as claimed by appellant, that he was not provided by appellee with a ladder upon which he could have climbed to the defect in the water column and descended therefrom; but he does not allege, nor does the evidence show, that there had ever been a ladder used in making repairs upon the water columns, or that he had, in making previous repairs thereon, used a ladder, or at any time advised appellee of the necessity of its use. So whatever risk attended appellant's climbing to the place of the defect or descending therefrom without the use of a ladder was known to him before and when he undertook the work of making the repairs on the water column.

It is our conclusion that the facts of this case place it in that class of cases to which the rule that the master owes the servant the duty of furnishing him a reasonably safe place to work, or reasonably safe tools with which to perform the work, does not apply, because the servant, by reason of the nature of his employment and the service required of him, is himself charged with the duty of inspection and seeing to it that the place of his work and the appliances with which he must perform it are reasonably safe for its

Ky. 554, 172 S. W. 942, L. R. A. 1915D, 157, will be found the latest statement of the rule in question as declared by this court. In that case the plaintiff sued to recover of the defendant damages for injuries he sustained by falling from a building upon which he and other employés of the defendant were engaged in placing a tile roof; the negligence complained of being the act of the defendant in requiring a steep roof to be put on without first providing either gutters or hangers, by means of which plaintiff would have been enabled to use ladders upon the roof while engaged in the work of placing and securing the tiles in position. In the opinion it is said:

[1 It is apparent from the evidence that the service performed by appellant in repairing the water column was a part of the work for which he was expressly employed; that the work he did was not performed under the supervision or direction of any superior officer or employé of appellee, but according to his own judgment, after an inspection of the defect. Neither the notice from Smith, his fellow pumpman, of the necessity of mak-performance. In Daisey v. Wagner et al., 162 ing the repairs, nor the order from his superior, Allen, received while he was on his way to the water column, contained any direction as to the manner in which the work should be performed. They left to appellant the inspection and ascertainment of the defect, as well as the method of repairing it. Moreover, the evidence shows that appellant was experienced in the work of making such repairs, that he had for a year or more kept the two water columns of appellee at South Portsmouth in repair, and that he was thoroughly familiar with the construction of both and with the means necessary to be used in reaching the place where the repairs in this instance were made. This familiarity with the water columns and the means of making such repairs as the one in question make it reasonably apparent that appellant, at the time of receiving his injuries, was not called upon to meet any danger of which he was ignorant, or without means of ascertaining. He also knew, from an inspection of the defect and pipe before he attempted to descend from the water column, that water was leaking on the pipe by which he attempted to descend, and of its slippery condition, in view of which he is estopped to claim that the risk or danger he encountered from the slippery condition of the pipe in attempting to get down from the water column was unknown to him. He also knew that the risk attending his work was necessarily greater at night than it would have been in the daytime, and if the one lantern

"The work attempted to be done by appellant was in itself hazardous, and the danger of its performance obvious to a person of even less in charge of the work as foreman, because of experience than was possessed by him. Being his experience and skill, he will not be heard to say that he did not know of the danger. Therefore such risks as would ordinarily be incident to such work must be regarded as having been assumed by him. The duty of the master with respect to the furnishing of a safe place or safe premises for the performance of such work as fell to the lot of appellant can have no application. Therefore the master is not, in a case like this, charged with the duty of exercising ordinary care to discover the dangerous or unsafe place, and is not liable in damages for an injury to the servant because of the dangerous condition, for, the danger being obvious, the duty of protecting himself against it is shifted to the employé. So, assuming in this case that appellant's injuries were received as alleged in the petition, as the conditions which caused them were openly visible to him and the

the tank and the caboose.

This coupling

his judgment as appellees' foreman, there being | up and couple up; it is time to leave." The no assurance by the appellees of the safety of only coupling to be made was that between the place (even if such assurance under the circumstances could have shifted the liability), nor promise by appellees to provide other appliances was made by the plaintiff, who had served of greater safety, we can but hold that appel- the railroad company on that train for about lant assumed the dangers incident to the per- four months. formance of the work, for which reason he can-made by him, and he well knew the defective The coupling had often been

not recover damages."

The above excerpt from the opinion is but a restatement in different language of the same rule announced by the court in Russel v. W. E. Caldwell Co., 158 Ky. 229, 164 S. W. 787; Ballard & Ballard v. Lee's Adm'r, 131 Ky. 412, 115 S. W. 732; Wilson v. Chess & Wymond Co., 117 Ky. 567, 78 S. W. 453, 25 Ky. Law Rep. 1655; Louisa Coal Co. v. Hammond's Adm'x, 160 Ky. 271, 169 S. W. 709; Logan's Adm'r v. Sherrill-King Mill & Lumber Co., 160 Ky. 295, 169 S. W. 707; Williams Coal Co. v. Cooper, 138 Ky. 287, 127 S. W. 1000; Mowrey v. Frazier, 120 S. W. 289; Wight v. Telephone & Telegraph Co., 137 Ky. 303, 125 S. W. 718; Standard Oil Co. v. Watson, 154 Ky. 550, 157 S. W. 929; Dyer v. Pauley Jail Bldg. Co., 144 Ky. 592, 139 S.

W. 789.

condition of the drawhead and how the cou

pling was made. In the opinion it is said: "The rule in Kentucky is that ordinarily a servant, who knows the risk and understands the danger, cannot recover for his injury where he voluntarily takes the risk. Dow Wire Works V. Morgan [96 S. W. 530] 29 Ky. Law Rep. 854; Wallace v. Bach [97 S. W. 418] 30 Ky. Law Rep. 69; Bollington v. L. & N. R. Co. [125 Ky. 186, 100 S. W. 350] 30 Ky. Law Rep. 1260 [8 L. R. A. (N. S.) 1045]; Avery v. Lung, 106 S. W. 865, 32 Ky. Law Rep. 702. An exception is made to this rule where the servant acts in obedience to the specific order of his superior, and the risk is not so imminent fuse to take it; but the proof in this case does that a person of ordinary prudence would renot bring it within the exception. There was no order from the conductor to Stanfill to make the coupling in question. There was simply a general order to both of the brakemen to 'get up and couple up; it is time to leave.' This left either one of them to do the work, and it [2] The contention of appellant that he left the one who did the work to choose his own was working under the direct orders of a mode of doing it. A general order from a foreman to proceed with the usual business of the superior officer is wholly without merit. It day will not impose upon the master any greatis true he testified that he received an order er responsibility than he ordinarily incurs. from his immediate superior to make the hold otherwise would be to entirely ignore the rule that the servant cannot recover for the repairs on the water column; but he admit-risks which he assumes; for, when servants are ted that he would have made the repairs without this order, because of the previous notice from Smith, his fellow pumper, of the necessity therefor, and, furthermore, that it was a part of his duties as day pumpman to make all necessary repairs in the water columns, whether required to be performed in the daytime or at night. In fact, when the order was received from his superior, he was on his way to make the repairs. So in no event was the order anything more than a general order to appellant to do what was one of the ordinary duties of his employment. The order did not, in fact or as a matter of law, impose any greater responsibility upon him than he would otherwise have incurred. The effect of such an order is considered and passed on in L. & N. R. Co. v. Stanfill, 107 S. W. 721, 32 Ky. Law Rep. 1043. Stanfill was a brakeman in the service of the rail-jected to making the coupling with them. As a road company on a work train. There was one other brakeman on it besides himself. While coupling an extra tank to the caboose, his hand was caught between the bumpers and all his fingers mashed off. He sued to recover damages for the injury, and obtained a verdict for $5,500 in the circuit court. The judgment was reversed. The negligence charged was that the bumpers were defective, derstood, as well before and when he receivand plaintiff's injuries were caused by their dangerous condition. He claimed to have made the coupling by order of the conductor. The two brakemen, while asleep in the caboose at a station, were awakened by the conductor, who told them to "get up and get

told to go to work every morning, they are ex-
pected to go about their usual business and do it
within the exception above referred to, there
in the usual way. In order to bring a case
must be an order from the master to the serv-
ant to do the particular thing at that time. The
conductor was in the caboose. It was the brake-
man's duty to get the train ready to start, and
after telling them 'to get up and get out and
couple up,' he paid no further attention to them.
If the conductor had been present at the time
ed to making it, and the conductor had direct-
the coupling was made, and Stanfill had object-
ed him to make it, a different question would
be presented; but here the sum of the evidence
is simply that the conductor told the brakeman
to get up and get the train ready to leave, and
Stanfill, in obeying this order, went out and un-
dertook to make this coupling. He knew the
condition of the drawheads as well as the con-
understood the danger before he was hurt, as
ductor. The danger was perfectly patent.
well as after he was hurt. He had never com-
plained of the use of the link and pin, or ob-

He

matter of fact such couplings were in general use a few years ago on all such trains, and they are still often used on work trains and in an emergency."

In this case, as in that, the servant chose his own way of doing the work, and made no complaint to any one. The condition of the water column was, as before stated, actually known to him, and the danger fully un

ed his injuries as afterwards. On the state of case here presented, the conclusion is inevitable that appellant assumed the risk and danger that resulted in his injuries; in other words, that the injuries resulted from the means adopted by him in performing the

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