
    CASE 23.-ACTION BY BUFORD HARPER AGAINST THE ILLINOIS CENTRAL RAILROAD COMPANY FOR DAMAGES FOR PERSONAL INJURIES.
    July 7.
    Harper v. Illinois Cent. Ry. Co.
    Appeal from McCracken Circuit Court.
    W. M. Reed, Circuit Judge.
    From a directed' verdict for defendant, plaintiff appeals.
    Affirmed.
    1. Master and. Servant — Obligation of Servant — Safe Place to Work. — As a general rule, a master must furnish a servant a. reasonably safe place in which to do the work for which he is engaged and reasonably safe implements to work with, and a servant injured while performing his work by defective appliance, or place and from which his attention was for a moment distracted, may recover, though he had knowledge of the defect and continued to work.
    2. Same — Obligation of Master — Safe Place to Work. — The duty of a master to furnish reasonably safe appliances ami reasonably safe places is confined to the appliances with which the servant is required to work, or the places- where bis duties require him to be.
    3 Same — Injury to Servant — Negligence.—A master is not liable for injuries to a servant when the servant through heedlessness receives • injury from appliances that his duties do not require him to labor with, though they are defective.
    4. Same — Assumption of Risk. — Every employe in every business must assume some of the risks and dangers that are incident to it or that* may happen with the utmost care on the pare of the employer to prevent or guard against, and the master is not responsible for accidents caused by the- servant’s inattention to his duties or his careless performance of them.
    5. Same — Injury to Servant — Negligence.—In an action for injuries to an employe, held, that the employer was- not negligent in failing to guard a machine which the employe was not required to use or touch.
    HENDRICK, MILLER & MARBLE for appellant.
    POINTS AND AUTHORITIES.
    1. There is abundant evidence to sustain the plaintiff's claim of negligence on the part of / the employees of the defendant, not only so, but the proof shows gross negligence. Definitions of gross negligence. (Redington v. Pacific Postal Telegraph Co., 48 Am. St. Rep. 132; L. & N. R. R. Co. v. Sheets, 11 Ky. Law Rep. 781; C. & C. R. R. Co.' v. Dodge, 23 Ky. Law Rep. 1959; L. & N. R. R. Co. v. Walden, 25 Ky. Law Rep. 1.)
    2. One injured thereby may recover damages for the negligence of another even though the mind of the injured person was preoccupied at the time the injury was received. (Kane v. N. C. R. R. Co., 128 U. S. 339; Phoenix Ins. Co. v. Foster, 106 U. S. 30 and 32; Randall v. B. & O. R. R., 109 U. S. 478; Anderson Co. v. Beal, 113 U. S. 227; Goodlet v. L. & N. R. R., 122 U. S. 391; R. R. Co. v. Young, 49 Fed. Rep. 723; R. R. v. Vestal, 20 Ky. Law Rep. 1288; Sherman & Redfield on Negligence, vol. 1, section 213.
    3. One injured by the negligence of another may recover damages therefor where the injured party had knowledge of the danger but for the moment had forgotten it. (Lancaster v. Walter, 25 Ky. Law Rep. 2189; Bellevue v. Genoway, 14 Ky. Law Rep. 304; West Ky. Tel. Co. v. Pharis, 25 Ky. Law Rep. 1838; Maysville v. Guilfoyle, 110 Ky., 670; Fordsville v. Spencer, 23 Ky. Law Rep. 1260; Louisville v. Brewer, 24 Ky. Law Rep., 1671; Pemberton’s Admr’ v. Madisonville, 25 Ky. Law Rep., 347; Carlisle v. Secrest, 25 Ky. Law Rep. 336c
    4. Where there is • any evidence tending to support the contrary side or when there is a conflict of evidence 'a peremptory instruction will not be given. (Aetna Ins. Co. v. Kaiser, 24 Ky. Law Rep., 2456; Post v. Richardson, 24 Ky. Law Rep. 462; Richards v. L. & N. R. R., 20 Ky. Law Rep. 1479; Bueh v. Jackson, 20 Ky. Law Rep. 1544; I. C. R. R. v. Walters, 22 Ky. Law Rep. 139; Mains v. L. & N. R. R., 22 Ky. Law'Rep. 1595; Wickliffe v. Payton, 18 Ky. Law Rep., 16; I. C. R. R. v. Jackson, 23 Ky. Law Rep. 1405; Wilson v. L. & N. R. R., 83 Ky. 516: Hart v. Miller, 10 Ky. 336 (3 A. K. M.); Thompson v. Thompson, 56 Ky. 22 (17 B. M.); Dallam v. Handley, 9 Ky. 424 (2 Mar.): Adams v. Tieman, 35 Ky. 399; Trotter v. Sanders, 30 Ky. 321; L.'& N. v. Arnold, 22 Ky. Law Rep. 199; Lingenfelter v. L. & N. R., 9 Ky. Law Rep. li.6; Middleton v. Lumber Co. 23 Ky Law Rep. 1751; Louisville R. Packet Co. v. Buttori, 77 S. W. 920; L. & N. R. R. v. Dick, 78 S. W. 914; Curran v. Stein, 22 Ky. Law Rep. 1575; Society of Shakers v. Underwood, 74 Ky. 11; Tubb’s Admr. v. R., 7 Ky. Law Rep., 528; Woods v. McCombs’ Admr., 5 Ky. Law Rep. 694; Barret v. Meek, 2 Ky. 34; Ceruth v. Tate, 89 Ky. 587; Nichols v. R. R., 8 Ky. Law Rep., 519; Easley v. Easley, 57 Ky. 86; Roland v. Hanna, 41 Ky. 129; Louisville Water Co. v. Phillips, 28 Ky. Law Rep. 557; R. R. Co. v. Burges, 27 Ky. Law Rep. 253; Hart v. Miller, 3 A. K. M. 336; Thompson v. Thompson, 17 B. M. 22; Dallam v. Handley, 2 Marsh. 424; Adams v. Tieman, 35 Ky. Law Rep., 394; Trotter v. Sanders, 30 Ky. 321).
    5. The court erred in excluding certain testimony. (Champion Ice & Storage Co. v. Qarter, 21 Ky. Law Rep. 210.)
    WHEELER, HUGHES & BERRY for appellee.
    J. M. DICKINSON, TRABUE, DOOLAN & COX of counsel.
    POINTS AND AUTHORITIES.
    1. Negligence is a question for the court where the facts are admitted or established by undisputed testimony. (Henderson Trust Co. v. Stuart, 108 Ky. 169; Exchange Bank of Ky. v. Trimble, 108 Ky. 230; Greenwood v. McHenry Coal Co., 14 Ky. Law Rep. 336; L. & N. R. Co. v. Breeding, 13 Ky. Law Rep. 397; L. & N. R. Co. v. Raines, 15 Ky. Law Rep. 423; Ashland C. I. & Ry. Co. v. Wallace, 101 Ky. 626; City of Lancaster v. Walters, 25 Ky. Law Rep. 2189; Ry. Co. v. Wallace, 101 Ky. 637.)
    2. It appearing from the plaintiff’s own testimony that there was negligence upon his part contributing to the injury, and but for which the accident could not have happened, he is not entitled to recover. (P. & M. R. Co. v. Hoehl, 12 Bush, 41; Cential Ry. v. Thomas, 79 Ky. 160; Favre v. L. &'N. R. Co., 91 Ky. 544; City of Maysville v. Guilfoyle, 110 Ky. 670; Cahill v. Cincinnati & Ry. Co., 92 Ky. 345; Bush v. Grant, 22 Ky. Law Rep. 1766.)
    3. No error in refusing evidence as to what was done after accident. (Standard Oil Co. v. Tierny, 92 Ky. 367.)
   Opinion of the Court by

Judge Carroll

Affirming.

The appellant brought this action against the appellee company to recover damages for personal injuries sustained while laboring in its employment. Upon the conclusion of the evidence, the trial judge directed the jury to return a verdict for the defendant, now appellee. This ruling imposes upon us the necessity of reviewing the facts for the purpose of ascertaining whether or not there was sufficient evidence to authorize the submission of the case to the jury.

It appears that at the time of the accident appellant was engaged in heating rivets in a portable furnace, and carrying them, when heated, to an ash pan located about eight feet from the furnace, which was being repaired by two boiler makers. It was also his duty to put the heated rivets into holes in the ash pan, which rivets were then driven and riveted by the boiler makers-. The ash pan had been placed for repairs in an open space in one of the shops of the company about three feet from a large upright machine, with cogwheels, used for rolling iron. The furnace in which the rivets were heated was also some three feet from the rolling machine; the furnace being north of the rolling machine, and the ash pan west. The rolling machine stood upright in the floor, was several feet high and the rollers which were unprotected, could plainly be seen by any person exercising the slightest degree of care. The cogwheels of the machine were put in motion by a belt operated by a lever, and, although it had been located for some months at the place where it was when the appellant was injured, it had not been operated for some time previous thereto1. While appellant was in the act of putting a rivet in its place in the ash pan with his right hand, he carelessly or thoughtlessly put his left hand behind him, when it was caught between the cogwheels of the rolling machine that had been started a few moments before without warning or notice to him. As a result, three of his fingers were crushed. The duties of appellant did not require him to handle, touch, or use the roller machine, nor was he injured by reason of any defects in the implements he was working with. His cause of action based upon the foregoing facts is rested upon the failure of the company to furnish him a safe place in which to work, or, to state more specifically, upon the failure of the company to have the cogwheels on the machine protected, or the negligence of its servants in starting it without notice, or warning to him. Keeping in mind that appellant’s duties did not require him to touch, use, or handle this roller, or to place his hand in such a position as that it would come in contact with it, the question remains: Is the company liable because appellant carelessly or thoughtlessly placed his hand in such a position as that the rollers would catch it? Or, to put it in another way: Was the company under a duty to appellant to have the cogwheels of the roller machine so protected that his hand could not have been caught, or to have anticipated his thoughtless or careless act and warned him that the machine would be started?

It has been settled in numerous eases that, as a general rule, the master must furnish the servant a reasonably safe place and premises in which to do the work for which he is engaged and reasonably safe implements to work with. It is equally well settled that in many states of case the master will be liable, although the servant after notice or knowledge of defective places or premises or appliances continues to work; and so, if the servant should he injured while performing his labors by a defective appliance or place used by him and from which his attention was for a moment distracted. These principles have been so often declared and are so well known to the profession that we deem it unnecessary to do more than cite the following authorities: Pfister v. Peter, 117 Ky. 501, 78 S. W. 450, 25 Ky. L. R. 605; Western Union Telegraph Company v. Holtby, 93 S. W. 652, 29 Ky. L. R. 523; Kentucky & Indiana Bridge Co. v. Melvin, 104 S. W. 334, 31 Ky. Law Rep. 959; Pullman Company v. Geller, 107 S. W. 271, 32 Ky. Law Rep. 885; Kilpatrick v. Grand Trunk Ry., 74 Vt. 288. 52 Atl. 531, 93 Am. St. Rep. 887. But the duty of furnishing reasonably safe appliances and reasonably safe places and premises is confined to the appliances and places and premises with which the servant is required to work, or in which his duties requiré him to be. We do not understand that this rule for the protection and safety of servants in respect to appliances or premises has ever been extended to embrace places or appliances outside of those that the servant’s duties require him to labor with. Wilson v. Chesapeake & Ohio Ry. Co. (Ky.), 113 S. W. 102, Ky. 182. Nor' is the master liable when the servant through carelessness or heedlessness receives injuries from appliances that his duties do not require him to labor with, although they may be unsafe and defective. In every machine shop there are machines and appliances that are dangerous and so constructed as to require care on the part of the employes to prevent injury to themselves, and if an employe through thoughtlessness or negligence upon his part is injured by machinery that may not be reasonably safe, or tbat is defective, tbe master will not be held accountable when the servant has no duty to perform in connection witb tbe machinery tbat injures him. Tbe master is not an'insurer. Every employe in every business must assume some of tbe risks and dangers that are incident to it or that may happen even witb tbe utmost care on the part of tbe employer to prevent or guard against them. Liability ought not to be fastened on tbe master for every injury tbat bis servants receive. He ought not to be held responsible for accidents tbat inflict barm when they are caused by tbe servant’s inattention to bis duties or bis careless performance of them. If this rule were established, there would be no limit to tbe employer’s liability, and tbe employe would .be absolved from the duty of exercising care to prevent injury to himself. As to an employe whose duties required bim to use this roller machine, tbe company might have been liable for tbe failure to protect tbe rollers, or for tbe failure to give warning before starting tbe machine. But, we do not think it owed either of these duties to appellant. Nor was tbe person who started tbe machine without warning or notice to appellant guilty of any neglect. He could, not and was not required to anticipate tbat appellant would put bis band in contact witb it. Richardson v. Mesker, 171 Mo. 666, 72 S. W. 506. Tbe fact tbat tbe machine bad not been operated for some time, and tbat it was standing idle in tbe room, did not furnish any notice or information to tbe person in charge of it tbat appellant would place bis band in a position to be caught and injured.

We have examined tbe cases of Louisville & Nashville Railroad Company v. Vestal, 105 Ky. 461, 49 S. W. 204, 20 Ky. L. R. 1069, and Kane v. Northern Railroad Co., 128 U. S. 91, 9 Sup. Cf. 16, 32 L. Ed. 399, cited by appellant. Tbe doctrine announced in these authorities is a recognized rule in this State, but is not applicable to the facts here presented. In those cases the servant by inattention or thoughtlessness received injuries from defective appliances and premises that they were required to use in the performance of their duties, and it was held that, although the servant knew of the defective and unsafe conditions, yet they were not guilty of such contributory negligence as would defeat a recovery, if in a moment of forgetfulness the danger escaped their attention; and so in the City of Lancaster v. Walter, 80 S. W. 189, 25 Ky. Law Rep. 2189, and Western Kentucky Telephone Company v. Pharis, 78 S. W. 917, 25 Ky. Law Rep. 1838, and other cases, it has been held that a pedestrian, who knew of the defective condition of a sidewalk, but momentarily forgot it, and was injured, could not as a matter of law be denied a recovery.

We have given to this case careful attention, and, looking at it . from any standpoint, we are unable to perceive in what respect the company was guilty of negligence as to appellant. The misfortune he met .with was due entirely to his own thoughtless or heedless act, and, as there is no dispute about the facts, our conclusion is that the court properly directed a verdict for. the defendant.

The judgment of the lower court is affirmed.  