Case 22 — Action oar James E.' Brown Against Levy Bbos, &o., fob Personal Injuries —

March 29.

#### Brown v. Levy, &c.

APPEAL PROM JEFFERSON CIRCUIT COURT, EQUITY DIVISION.

Judgment for Defendants and Plaintiff Appeals.

Reversed.

Liability of 'Master for Injury to Servant by Negligence of Incompetent Fellow 'Servant.

Held: Where the master has notice of the incompetency of a servant, and promises a fellow servant to remove him and put a competent man in his place, he is liable for an injury thereafter done by the negligence of such incompetent servant to a fellow servant, provided such a time had not elapsed after the promise as to preclude all reasonable expectation that the promise would he kept.

S. F. J. TRABUE and MATT O’DOHERTY, Attorneys for appellant.

1. It is the duty of the master to furnish his servant with proper appliance for the execution of his work, and to associate with *him competent co-employes.*

*1642. Where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby *within such a period of time after the promise,*as it would he reasonable to allow for its performance; *and the same principle applies to a case where the master promises to discharge an incompetent servant, hut fails to do so, and a fellow servant is injured hy the acts of the incompetent servant*Shearman & Redfield on Neg. (.5 Ed.), sec. 215; Laning v. N. T. G. R. Go., 49 N. Y., 521; Hough v. Texas Pacific R. R., 100 XT. S., 25; Breckinridge Company v. Hicks, 15 Ky. Law Rep., 143.

ZACK PHELPS, Attorney tor appellee.

J.. There is a vast difference between the question of “defective machinery and that of a negligent or inefficient fellow servant.” Wood on Master and Servant, chap. 16; Story on Agency (9 Ed.), sec. 453; 2 Thompson on Negligence, chap. 20; 2 Thompson on Negligence, p. 974; O. & M. R. R. v. Colloran, 73 Ind., 261; 5th Am. & Eng. R. R. Cases, 554; Bogenshutz v. Smith, 84 Ky., 336; Kelly v. Barber Asphalt Co., 93 Ky., 364; 11 Bush, p. 81, Sullivan’s Admr. v. Lou. Bridge Co.; Hough v. Texas Pacific R. R. Co. 100 U. S., 25. •

Opinion op the court by

JUDGE WHITE

Reversing.

The appellant brought this action for damages for personal injuries received while in the employ of appel-lees. It is charged in the petition that appellant was ■employed to overhaul and repair the elevator in use in .appellees’ building, and in such employment it was necessary for appellant to have an assistant; that appellees ■employed as such assistant one Reece; and that by reason of the carelessness and negligence of Reece, while he and appellant were engaged in the repair of the elevator, appellant was injured, and for that injury a recovery is sought. It is alleged as a ground of recovery that in selecting and employing the assistant, Reece, appellees failed to exercise ordinary or any care, and that appel-lees knew when Reece was employed that he was careless and negligent, yet employed him, and for this negli*165gence in the employment of Neece appellees were liable. To this petition a demurrer was sustained. Appellant filed an amendment, in which it is pleaded “that a short time before his injuries in his petition set out, becoming aware of said Harry Neece’s unfitness and incompetency, he (plaintiff) complained thereof to the defendants, gave them express notice of said Neece’s unfitness and 'incompetency for said employment, and said defendants then and there promised this plaintiff that they would in a short time thereafter remove said Neece, and associate with plaintiff in their said service a competent and skilled workman'. Plaintiff says that he relied upon the promise and assurance so given to him by the defendants, and so remained and was in their service, in reliance upon their said promise and agreement, at the time of his injury in his petition complained of.” The amendment then reiterates the allegation that he was injured by the negligence of Neece, and seeks a recovery because of the negligence of appellees in retaining Neece after the notice and promise above. To tbe petition as amended a demurrer was sustained, and the petition dismissed. From that judgment this appeal is prosecuted. In Wood, Master & Servant, section 420, it is said: “Negligence on the part of the master is not to'be presumed from the negligence of the servant, but, in order to render him liable for injuries sustained by one servant from the negligence of another, some sort of negligence on the part of the master, either in the employment or *retention*of the servant, must be shown.” (Italics ours.) Again, section 423: “The employe must be incompetent, and the master, guilty of negligence in his employment or *retention*[italics ours], or no liability can be predicated of his acts; and the same is true if the servant injured has the same *166knowledge, or means of knowledge, of his unskillfulness as the master has.” In Shear. & R. Neg. (5th Ed.), section 215, it is said: “There is no longer any doubt that, where a master has expressly promised to repair a defect the servant does not assume the risk of an injury caused thereby within such a period of time after the promise as would be reasonably allowed for its performance, or, indeed, within any period which would not preclude all reasonable expectation that the promise might be kept. *And the same principle applies to a ease where the master promises to a servant to discharge an incompetent felloio servant, hut fails to do so, and the former servant is thereby injured,*or where a servant, apprehending a particular danger, makes it known to the master, who assures him he will provide against it.” (Italics ours.) The rule as to defective appliances, as stated by Shear-man & Redfield, has repeatedly been recognized by this court. Breckinridge Co. v. Hicks, 94 Ky., 362, [22 S. W., 554], and cases there, cited. The reason of the rule is that while the employe is held to assume the ordinary risks and hazards of the business in which he is engaged and this includes ordinary breakages or mishaps, where a defect is known to the employer, and a promise is given to the employe to remedy the defect, for the time being— a reasonable time — the employer is to be held to have assumed special responsibility for that defect, and, if injury is caused thereby, the employer will be liable, for this is not one of the risks assumed by the servant, but was especially assumed by the master. We are of opinion that the same rule applies to the negligence of a fellow servant. A servant ordinarily assumes the risks of the negligence of a fellow, but when the attention of the master is called to such negligence, and complaint is *167made, and the master promises to replace the negligent servant, for the time being — a reasonable time — the master assumes the risk of an injury by reason of the negligence of that servant. A servant can not be held to assume the risk of injury by the negligence of a fellow servant after a complaint of that very thing, and after a promise by the master to remedy the matter or remove the servant, unless the servant complaining were to com tinue at work with s,uch incompetent servant after such time as would preclude all reasonable expectation that the master's promise would be kept. We are of opinion that the petition as amended states a cause of action under this rule of law. The demurrer thereto sh.ould have been overruled. Judgment reversed, and cause remanded for proceedings consistent herewith.