1. MASTER AND SERVANT-DEFECTIVE APPLIANCES-DUTY OF SERVANT. In this action by an employe of a railroad company for injuries received by him while operating a turntable, it appearing that the turntable was in good working order, and that every part was fully exposed to view, and that whatever risk attended its operation was open and visible, a peremptory instruction to find for the defendant was properly given. The rule is that a 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 judgment of his master. In order to recover for injuries caused by defective machinery or appliances he must show that the appliances were defective, that the master had knowledge thereof or ought to have had, and that he (the servant) did not know of the defect, or did not have equal means of knowing with the master.

OSCAR TURNER, JR. FOR APPELLANT.

1. The appellant never assisted in the operation of the turntable until the day before he was injured, and was not aware of the danger in its operation; under such circumstances it was the duty of the foreman, under whose orders he was acting, to warn him of the danger and protect him from it. Cooley on Torts, p. 632: R. R. Co. v. Dirby, 14 How., 487; R. R. Co. v. Dickson, 88 Ill., 431.

2. The appellant was not guilty of contributory negligence. In order that an act shall be deemed negligence per se it must appear so opposed to the dictates of common prudence that the court can say without hesitation or doubt, that no careful person would have committed it. 13 Ky. Law Rept., L. & N. R. R. v. Robinson; Whitehouse Coal Co. v. Cochran; 13 Ky. Law Rept., 636.

3. The fact that the turntable had been there for years in its

Mellott v. Louisville & Nashville Railroad Company.

then condition affords no excuse for the wrong, but is an aggravation of it, and it only tended to lull the defendant into a sense of security; and the presence of the foreman, even if he did not give any order, was equivalent to an invitation to go ahead, that there was no danger. Amer. & Eng. Enc. of Law, vol. 16, p. 414 and notes, and p. 440; L. & N. R. R. v. Foley, 15 Ky. Law Rept., 19; C. N. O. & T. P. Ry. v. Sampson, 16 Ky. Law Rept., 819.

LYTTLETON COOKE FOR APPELLEE.

1. Before the servant can recover from his master on account of defective machinery, etc., the appliances must be defective, the master must have notice or knowledge thereof, or ought to have had, and the servant must not have known of the defect, or must not have had equal means of knowing with his master. When a servant enters the master's employment he takes the risks incident to the business, and all other open or visible risks, whether incident to the business or not. Sullivan's Adm'r. v. Louisville Bridge Co., 9 Bush, 81; Kelly v. Barber Asphalt Co., 14 Ky. Law Rept., 356; Bogenschutz v. Smith, 84 Ky., 338; Wharton on Negligence, sec. 214; Shearman & Redfield on Negligence, 3d Edition, sec. 91; Thompson on Negligence, vol. 2, sec. 15; Wood on Master and Servant, sec. 326; Perigo v. Chicago, R. I. & P. R. R. Co., 52 Iowa, 276; Chicago, &c. R. R. Co. v. Clark, 15 Amer. & Eng. R. R. Cases, 261; C. O. & S. W. R. R. v. McDowell, 16 Ky. Law Rept., 1; L. & N. v. Hinder, 16 Ky. Law Rept., 841; Norton v. L. & N. R. R., 16 Ky. Law Rept., 846.

JUDGE DURELLE 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 was 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

Mellott v. Louisville & Nashville Railroad Company.

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 wedgeshaped space was left between the table and the straight wall, tapering from two feet wide at the "circle wall" to Lothing 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.

Mellott v. Louisville & Nashville Railroad Company.

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 which 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.

City of Lebanon v. Edmonds.

CASE 36-PETITION IN EQUITY-APRIL 30.

City of Lebanon v. Edmonds.

APPEAL FROM MARION CIRCUIT COURT.

1. MUNICIPAL TAXATION OF FARMING LANDS.-The property sought to be exempted from municipal taxes not having been used for farming purposes, but having been designed and improved merely as a private residence, as is manifested by the elaborate improvements put thereon, and having been regularly brought into the corporate limits, is subject to municipal taxation; and the fact that its owner does not have his full measure of benefits and advantages from the municipal government is not the fault of the law, as the owner has his legal remedy against the municipal government.

2. ESTOPPEL.-The appellant having united with others in petitioning the General Assembly to pass an act extending the city boundary so as to include the land in question, is estopped to allege that the proposed tax is taking his property for public use without compensation.

H. W. RIVES FOR APPELLANT.

1. The extension of a local government to a new boundary, is an act of legislative discretion that can not be reviewed by the courts, whatever abuse or apparent injustice may be the consequence. The remedy is by appeal to the legislature unless the complainant can rest his case upon some prohibition of, or right secured by, the Constitution. Cheaney v. Hooser, 9 B. M., 337; Elkton v. Gill, 94 Ky., 138; Swift v. Newberry 7 Bush, 37; Sharp v. Donovan, 17 B. M., 223; Pineville v. Greech, 16 Ky. Law Rept., 172; Henderson Bridge Co. v. City of Henderson, 90 Ky., 498; Louisville Bridge Co. v. City of Louisville, 81 Ky., 189; Eifort v. Covington, 91 Ky., 194; Maltus v. Shields, 2 Met., 553; Covington v. Southgate, 15 B. M., 491; Courtney v. Louisville, 12 Bush, 419.

2. Appellee is estopped from claiming that the extension of the limits is unconstitutional, for he not only united in securing it, but actually by petition assisted in procuring the passage of the act. Covington v. Southgate, 15 B. M., 496; Eifort v. Central Covington, 91 Ky., 198; Baker v. Brannen, 40 Amer. Dec., 383; Furgeson v. Landren, 5 Bush, 241.