court entered a judgment for the plaintiff, and adjudged the same to be a lien upon the 300-acre tract, and the devisees in remainder have appealed. The only question necessary to be passed upon is whether the devise by the husband to the wife of the Gaines farm is to be treated as a satisfaction of her claim. Whitaker in his will first provided for the payment of all his just debts and funeral expenses. He then gave to his wife in fee the Gaines farm. He then gave to her the 300-acre farm for life, and in remainder gave it to his two brothers and the children of his deceased sister. He then gave her all of his personal property for life, and in remainder to his heirs. This will was dated in June, 1906, more than 24 years after the purchase of the Gaines farm, and more than 21 years after the execution by him of the paper above quoted. That paper was found among his effects after his death, and it does not appear that his wife ever had possession of the same until then. In his will he does not mention any debt owing to his wife, nor does he refer in any manner to the fact that she had furnished any part of the money to pay for the Gaines farm. [1, 2] There are many exceptions to the general equitable rule that, where a legacy or devise is equal to or greater in value than a claim against the testator, the legacy or devise will be deemed a satisfaction; in fact, there is a tendency of the courts to seize upon very slight circumstance out of which to make an exception to the rule. For instance, the rule will not be applied where the legacy is of less value than the debt: the legacy is of less value than the debt; nor where there is a difference in the time of payment of the debt and the legacy; nor where they are of a different nature as to the subject-matter; nor where there is an express direction in the will for the payment express direction in the will for the payment of debts. Cloud v. Clinkenbeard's Ex'rs, 8 B. Mon. 397, 48 Am. Dec. 397. These exceptions, however, are all based upon the idea that they evidence a purpose by the testator that the bequest or devise shall be treated as a bonus, rather than a satisfaction of the claim. But the facts of this case do not bring it within any of these exceptions; the value of the devise is largely in excess of the claim. The devise and the claim refer to the same subject-matter, for the paper quoted shows that the money which the wife had advanced was used in paying for the property which was devised to her. The claim had been long since due at the time of his death, and the devise took effect at his death. Nor can the general direction in his will to pay his debts, under the circumstances of this case, be deemed to operate as an exception to the general rule; for, in the first place, it is apparent that he was not treating this claim held by his wife as an ordinary claim against his estate, but was paper dated the 5th of May, 1885, as an equitable lien which she had against the Gaines farm, into which her money had gone, and it is not unnatural that when he came to make his will 24 years later he should treat the devise to her in fee of the Gaines farm, worth more than her lien upon it, as a satisfaction of her claim. In the next place, the subsequent conduct of the widow, who survived her husband 4 years, and, being cognizant of all the facts and in possession of this paper, stood by and saw his estate fully settled without verifying or presenting this claim for payment, is inconsistent with any other view than that she treated, and knew that her husband intended, the devise to her of the Gaines farm in fee as a satisfaction of this claim. There is no safer or more salutary equitable rule than that the chancellor, after a long lapse of years, when the parties directly in interest have all died, will give such effect to the old transactions between them as they themselves by their conduct have given. It is not unfair to assume, from the tender and intimate relations which existed between this old couple, that the wife after his death knew that he intended the devise of the Gaines farm to her to be in satisfaction of her claim, and, so knowing, and being a conscientious woman, declined effect in law can be given to her failure to to present her claim; at any rate, no other do so. We have carefully examined all of the cases in this state wherein exceptions to the general equitable rule have been apto the general equitable rule have been applied, and in none of them do we find the facts to be in anywise similar to those in facts to be in any wise similar to those in this case. The case of Cloud v. Clinkenbeard's Ex'rs was an action by the plaintiff on an implied promise to pay for services rendered, and the executors sought to defeat a recovery by relying upon the provisions of the decedent's will wherein he had bequeathed the claimant $500 and some specific personal property. In that case the bequests were less in value than the indebtedness and made payable at a different time, and it was held that they were not to be deemed to be given in satisfaction of the debt. The case of Lisle v. Tribble, 92 Ky. 304, 17 S. W. 742, 13 Ky. Law Rep. 595, was where the husband died owing his wife $1,000, evidenced by note. After his death she brought a suit on the note, and the lower court gave her judgment for the amount of the note, but credited it by the value of certain personal property which he had bequeathed to his wife in his will. This the court said was error, because the value of the personal property was less than the amount of the debt, and because the presumption of satisfaction will not arise where the devise is of a different nature from the subject-matter of the indebtedness, and because the for the payment of his just debts. But in But in that case the claim of the wife was an ordinary or general claim against his estate, and did not represent a lien upon any particular property, and the circumstances were such that he would be presumed to have intended to provide for the payment of her debt as well as all others; it being a general debt, and not being a lien upon any particular property nor directly connected with or associated with any particular property held in his name. The case of Buckner's Adm'r v. Martin, 158 Ky. 522, 165 S. W. 665, L. R. A. 1915B, 1156, was where a mother devised to her unmarried daughter a defeasible fee in certain property worth twice as much as the mother owed the daughter as her guardian, and it was held that this devise was not intended as a satisfaction of the debt she owed as guardian. tion of her life estate, all of his property, except the Gaines place, which she had helped to pay for. In the light of these conditions, and the fact that his widow by her conduct after his death herself so construed his will, it would plainly do violence to his purpose to say that he intended his wife to have the Gaines farm and, in addition, to exact from his kindred the payment of her claim out of their remainder in the other land. The devise in fee of the land upon which she had a lien, being greater in value than the lien, must, under such conditions, be deemed in satisfaction of such claim, notwithstanding the direction for the payment of debts; for it is apparent that he did not consider this claim a debt at the time he simultaneously devised her the fee in the Gaines farm, upon which it was a lien. The judgment is reversed, with directions to dismiss plaintiff's petition. PHILLIPS v. CORBIN & FANNIN. (Court of Appeals of Kentucky. Nov. 10, 1915.) 1. MASTER AND SERVANT 125 - MASTER'S LIABILITY-APPLIANCES FOR WORK. servant reasonably safe appliances for work and While a master is bound to furnish the to exercise diligence to keep them in a reasonably safe condition, he is liable for injury from a defect only when he knows of such defect, or should have known of it by the exercise of ordi nary care. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. 125.] 2. TRIAL 296-INSTRUCTIONS-CONTRIBU In our view, the facts of this case do not bring it within any of the exceptions to the equitable rule. The husband nearly a quarter of a century after his wife's money had been invested in the Gaines farm, during which period he had recognized the fact that she had a lien thereon, when he came to make his will, instead of providing other wise for the payment of this money, devised specifically to her in fee the tract of land upon which she had a lien, and the wife. although she lived for four years after his death, failed to verify or to present any claim against his estate on that account, presumably because she knew the devise was intended as a satisfaction. To permit her estate, after her death, to subject the TORY NEGLIGENCE. land held by the remaindermen under her plaintiff's evidence showed a defect in the maIn a servant's action for injury, where husband's will would be to thwart not only chinery, and defendant's evidence was that the the testator's purpose, but his wife's as machine was not defective, and that plaintiff was well. Where a testator devises to his wife negligent, and the instructions defined negligence and ordinary care and stated that it was the specific property upon which she has a lien, master's duty to furnish reasonably safe applithe property being of greater value than the ances for work, and that on his failure to do lien, then being childless, and it is apparent so, resulting in the servant's injury, he would from his will that he intends that the re-injured by failing to exercise that degree of care be liable, an instruction that if the servant was mainder of his property at her death shall for his own safety which a person of his age go to his kindred, the devise will be treated and experience would ordinarily use under like as a satisfaction of the lien, and particularly circumstances, and but for want of such care where he has been otherwise generous with not recover, read with the other instructions, the injury would not have occurred, he could his wife, who after his death acquiesced in was not misleading, as it merely indicated that the devise and treated it as in satisfaction, the contributory negligence referred to was not and failed in her lifetime to verify and file any negligence arising from knowingly operating defective machinery. her claim against his estate for the amount of the claim. The rule is only one of construction, and all rules of construction in determining what wills mean must give way before the intention of the testator, when it can be fairly ascertained. In this case the wife had no children. She was not only given the fee-simple title to the Gaines place, but was given for life all his property of every kind, which doubtless furnished her an income far in excess of her needs. The testator, after thus generously providing for her, plainly next considered his own blood relatives, for he gave them, after the expira [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. 296.] MASTER'S 3. MASTER AND SERVANT 206 [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 550; Dec. Dig. 206.1 MASTER'S 4. MASTER AND SERVANT 217 LIABILITY-ASSUMPTION OF RISK-DEFECTS. In a contract of employment a servant never assumes risks arising from the use of defective tools and appliances unless he knows of [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. 217.] 5. MASTER AND SERVANT DUTY TION. 103-MASTER'S TOOLS AND APPLIANCES The master's duty of providing reasonably safe tools and appliances for work and exercising ordinary care to keep them reasonably safe is one which he cannot escape by delegating to the defect, or it is so obvious that his work will | About two inches of the saw protruded above make it known to him, and he continues regard- the table, and the remainder of the saw was less of the defect; and, if he knows of the de- beneath the table. The work of "listing" the fect, or it is obvious to him, he must exercise ordinary care to save himself from injury stave bolts was accomplished by the operator from it. taking the bolt in his hands and pressing it against the saw, when the saw would cut off the portion desired. A small guidepost was attached to the table, at a distance of three or four inches from the saw, to control the action of the bolt and the portion cut off, to prevent it turning backward toward the operator, and a narrow piece of board was nailed upon the side of the table to prevent the hands of the operator from coming in contact with the saw underneath the table. The work did not require on the part of the operator any great degree of skill, and the knowledge of how to do the work efficiently was acquired in a very short period of time, but the work from the nature of doing it and the appliances used was inherently and necessarily attended with considerable danger to the hands of the operator, if he failed to be careful and to observe his actions and the saw closely. another. [Ed. Note.-For other cases, see Master and Servant, Cent. Diz. § 175; Dec. Dig. 103.] 6. APPEAL AND ERROR 1064 - HARMLESS ERROR-INSTRUCTIONS. In a servant's action for injury, error in an instruction, making him assume the dangers of a defective appliance if by ordinary care he could have known of the danger therefrom, was not prejudicial, where he testified that he knew of the alleged defect. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. mm 1064.] Appeal from Circuit Court, Pike County. Action by Eli Phillips against Corbin & Fannin. Judgment for defendant and plaintiff appeals. Affirmed. J. S. Cline, of Pikeville, for appellant. Roscoe Vanover, of Pikeville, for appellee. The appellant, while engaged in operating the "lister" as a servant of the appellees, suffered the misfortune of his hand coming into contact with the saw, which injured three of his fingers. This occurred on the 28th day of July, 1911. On the 18th day of July, 1912, he filed this petition, in ordinary, and thereafter an amended petition against the appellees, in which he claimed that the appellees negligently and carelessly failed to use ordinary care to provide him with a reasonably safe place in which to work, and reasonably safe appliances with which to do the work; that the table upon which the saw was operated had become defective and unsafe, and in "listing" the stave bolts vibrated and shook; that an arm of the saw frame had become defective and loose, and by reason of the defective and unsafe condition of the table and arm of the saw frame, his hand was thrown against the saw and permanently injured; that he was inexperienced in the work, and was put to work with these defective appliances without being instructed as to the nature of the work or the manner in which it should be performed; that the appellees and their servants superior in authority to him knew, or could with the exercise of ordinary care have known, of the defective condition of the table and saw frame, and that the condition of same was not known to him, and could not have been known by him by the exercise of ordinary care. He sought to recover the sum of $3,000 in damages. HURT, J. The appellant, Eli Phillips, who was a young man 27 years of age, was employed by the appellees, Corbin & Fannin, in the operation of what is called a "lister," being a portion of the machinery of a mill, which was used in the manufacturing of staves for the making of barrels. The operation of the mill and the persons engaged in working at it were under the direction of Corbin, and Fannin resided at another place. The "lister" is a portion of the machinery of the mill, designed and used for the purpose of removing knots and rough edges from the sides of the stave bolts. It is constructed of four posts, four inches in width and the same in thickness, which were joined together near their ends by crosspieces of timber, thus making a frame with four sides, each of which was of the same width and height. Across the top of the frame a mandrel was extended, which rested upon the top pieces of the frame, and upon each side was fitted into "boxing" made of cast or iron, which was attached to the top pieces of the frame, and thus held the mandrel in position. A small circular saw, about eight inches in diameter, was fitted upon the mandrel. The mandrel passed through the saw at its center. The mandrel was connected with the motive The allegations of the petition and amendpower of the mill by a belt or other contri- ed petition were all traversed either by anvance, which caused the mandrel to revolve, swer or of record, and in addition the appeland thus gave action to the saw. Upon the lees pleaded that appellant was negligent and top of the mandrel a small table was fixed. careless, and his injuries were caused by his Through a slit in the table the saw revolved. I own negligence, and but for such negligence upon his part he would not have suffered | tive condition of the brace, but he informed same, and, furthermore, pleaded that the Holbrook of it, who was a hand working at dangers which resulted in the injuries to the mill, and whom he says had the duty of appellant were incident to the labor in which looking after the machinery, but who does he was engaged, and were known to him at not appear to have had any authority and and before his injuries or employment, and whom he did not call as a witness. He does that they were such as were assumed by the not claim or show that there was anything appellant when he sought and was given the about the operation of "listing" the staves or employment. The allegations in regard to the machine with which he was not acquaintcontributory negligence and assumed risk ed at the time of the injury. He was wearwere controverted upon the record. ing a pair of gloves at the time he was injured, but stated that he had not been informed by any one that it was dangerous to wear gloves in doing such work. He admits having been warned by Cager Spradlin, a workman at the mill, that the work was dangerous and to be careful. He further stated that after he was injured, about 3 o'clock p. m., another proceeded with the operation of "listing" the stave bolts, until the coming of night; that he knew of the unsafe condition of the machinery by reason of the brace being loose and calculated to fall down during the operation of the machine, before the time of his injury, but did not know that the effect of its falling down would be to throw his hand against the saw. The trial of the case resulted in a finding by the jury in favor of the appellees, and a judgment was rendered accordingly. The appellant moved to set aside the verdict and judgment and to grant him a new trial, which being overruled, he has appealed to this court. The appellant insists that he ought that he ought to be granted a new trial because of errors made by the court, prejudicial to his substantial rights, in giving to the jury the instructions 3 and 4, to which he objected at the time, and, his objections being overruled, he excepted. The instructions were given by the court upon its own motion; and, to determine whether any error prejudicial to appellant's substantial rights was made in the giving of instructions, it will be necessary to consider the evidence heard upon the trial. The appellant, testifying for himself, stated that he was 27 years of age; that he had engaged, before the time of his injuries, in working at different duties about the mill, and had seen the "lister" in operation, but had given it no consideration; that he was not shown or instructed as to the work or how it should be performed before engaging in it; that he had worked at "listing" stave bolts for only one day and a half of another day, when he received the injuries; that a brace, which supported the mandrel upon one end, was loose; that he discovered that it was loose, at once, after he commenced to work; that it fell down three or four times during the time he was employed, and that he would place it in position again; that when the brace would fall down, this would cause the saw to incline to one side; that the brace fell and caused the saw to incline to one side while he was "listing" a stave boit, and the strip, being cut from the side of the bolt, broke off, and that this had the effect of throwing his hand against the saw, underneath the table, and injuring his hand. He does not claim or state in his evidence that there was anything unsafe about the place in which he was assigned to work, or that the table vibrated or shook, or that there was anything defective about the appliances, except in regard to the brace. He furthermore stated that, at the times that the brace fell down, the appellee, Corbin, was in the mill and supervising and directing the operations of it, but he did not call the attention of Corbin to the unsafe condition of the "lister," arising from the defec The appellees introduced evidence which conduced to prove that appellant had been engaged in operating the "lister" 6 days, instead of 12 days, at the time of his injury; that before he was permitted to begin "listing" the stave bolts, Corbin, one of the appellees, went with him and showed him the nature of the work and how to perform it, and cautioned him that the work was dangerous if he did not exercise great care; that at the time of the injury the machine was in perfect repair; that there was no brace which would fall down, or could possibly fall down; that the machine had been in use for some years before, and without any repairs, and the use of it was continued for several months after the injury; that the appellant was careless in his work, and so much so that other persons engaged at the mill, before his injury, cautioned him in regard to it; that he did his work with canvas gloves upon his hands, and that he had been warned that to do so was unsafe and dangerous; that the appellant's work did not necessitate his putting his hands underneath the table at all. [1] The court gave to the jury instructions, by the first of which it defined negligence and ordinary care. By the second instruction, the jury was, in substance, told that it was the duty of the appellees to furnish appellant with appliances which were reasonably safe with which to perform his work, and if the appellees negligently furnished to appellant a table, upon which the saw was operated, that was defective and vibrated and shook, or that a brace of it was defective or loose, and that appellant was injured thereby, it should find for appellant, and, also, fixed the measure of his damages. This instruction seems to have been more favorable to appellant than he was entitled to. While it is a primary duty of the employer to furnish the servant reasonably safe appliances with which to work, and to exercise diligence to keep them in a reasonably safe condition, he is liable to the servant, for damages resulting from such defects, only when he knew of the defective condition of the appliances, or should have known of it by the exercise of ordinary care, in his duty to know of their condition. [2] By the third instruction the jury was told, in substance, that if the appellant suffered injury by failing to exercise that degree of care for his own safety, in the use and operation of the saw and table, which a person of his age, capacity, and experience would ordinarily use under like or similar circumstances, and but for want of such care upon his part, the injury would not have occurred, it should find for appellees. In the light of instruction No. 2, the contributory negligence referred to in the above instruction, as a defense to appellant's cause of action, does not constitute a defense to any claim for injuries suffered by appellant on account of the alleged defective appliances with which he was working, but applies to his negligence in failing to exercise care for his own safety, in the manner of his doing his work and operating the saw, without reference to whether its condition was defective or otherwise. While this view of the law governing the case might have been more aptly stated, it does not appear that the jury could have been misled, when all of the instructions are considered together, as the instruction clearly indicates that the contributory negligence referred to is not any negligence which would arise from knowlingly operating defective and unsafe machinery by the appellant. [3] By the fourth instruction the jury were advised, in substance, that in undertaking the services for which appellant was engaged, he assumed all the risks ordinarily incident to the performance of such services, and that it was his duty to exercise ordinary care to protect himself from dangers incident to the employment, and if the appellant knew, or by the exercise of ordinary care could have known, that there was danger from the defective appliances upon which the saw was operated, and with such knowledge, or means of knowledge, continued to work at the saw, and failed to take reasonable care to avert the danger, and was thereby injured, the law was for the appellees, and the jury should find for them. This instruction was erroneous, in that it made the appellant to assume the dangers of an alleged defective appliance with which he was assigned to work, if by the exercise of ordinary care he could have known of the danger arising from the defect. The dangers which a servant employer are such as are inherent in the work and grow out of its nature and, in fact, are necessary dangers, and the servant, in the contract, undertakes the risks arising from such necessary dangers. [4, 5] In a contract of employment, a servant never assumes risks which arise from the use of defective tools and appliances provided for him with which to do his work. He has the right to assume that the master will perform his duty of providing him reasonably safe tools and appliances with which to work, and will exercise ordinary care to keep them reasonably safe. In fact, this is a duty the master cannot escape by delegating it to another. It seems that in Ashland Coal & Iron Co. v. Wallace, 101 Ky. 626, 42 S. W. 744, 43 S. W. 207, 19 Ky. Law Rep. 853, such an instruction as the above was approved with reference to the safety of a place in which to work, but in adjudications subsequent that rule has not been adhered to. The rule which applies to risks assumed by a servant, arising from defective appliances, is that the servant does not assume a risk from a danger arising from a defective tool or appliance unless he knows of the defect and danger, or it is so obvious that the performance of his duties will make it known to him, and he then continues regardless of the defect and danger. If he knows of the defect and danger, or they are so obvious that the performance of his duties will make them known to him, he must exercise ordinary care to save himself from injury from them. Ahrens & Ott Mfg. Co. v. Rellihan, 82 S. W. 993, 26 Ky. Law Rep. 919; Covington Saw & Mill Mfg. Co. v. Clark, 116 Ky. 461, 76 S. W. 348, 25 Ky. Law Rep. 694; Ohio Valley R. R. Co. v. McKinley, 33 S. W. 186, 17 Ky. Law Rep. 1028; Henderson Tobacco Co. v. Wheeler, 116 Ky. 322, 76 S. W. 34, 25 Ky. Law Rep. 495; Crab Tree Coal Min. Co. v. Samples' Adm'r, 72 S. W. 24, 24 Ky. Law Rep. 1704; A. & E. Enc. of Law, vol. 20, p. 55; Pfisterer v. Peter, 117 Ky. 501, 78 S. W. 450, 25 Ky. Law Rep. 1605. [6] The instruction, however, could not have been prejudicial to the substantial rights of appellant, since appellant testified that he was fully cognizant of the alleged defects in the appliances to which he attributes his injury, and it is apparent that, if in the condition which appellant claims it to have been, the danger from it was obvious and patent, and the jury did not have to consider whether he could have known same by the exercise of ordinary care for his safety, since there was no testimony upon the subject except that of appellant, and there was no controversy as to his knowledge of the defects alleged by him. There being no error to the substantial rights of appellant, the judgment is therefore affirmed. |