#### Moreland’s Admr. v. Indian Refining Company.

(Decided February 14, 1912.)

Appeal from Scott Circuit Court.

1. Negligence — Pleading—Where, in a suit for personal injuries, the ■plaintiff specifies the acts of which the alleged negligence consists, he can not, upon the trial, avail himself of any other acts of negligence; he is confined to the specifications of his petition.

2. Negligence — Fellow Servant — Assumed Dish. — A servant cannot recover from the master for injuries inflicted by the negligence of a fellow servant in the same grade of employment engaged in the same field of labor, and associated or working with the injured servant, however gross the negligence of the fellow servant may be.

3. (Negligence — Contributory Negligence. — Where a workman was sent into a building to warn the occupants not to come out of the front door for ffear that they might be injured by a stone that was about to be thrown from the top of the building, and the messenger himself immediately returned and came out of the forbidden-door, and was struck and killed! by the falling stone, he was guilty of contributory negligence, and cannot recover damages for his injury.

13. M. ¡LE® for appellant.

■BRADLEY *&*BRADLEY for appellee.

Opinion of the Court by

Judge Miller

Affirming.

On December 16, 1908, Samuel Moreland was killed while working as a mixer of mortar for tbe stone masons who were building a bouse for appellee, in Georgetown. Tbe duties of Moreland were to mix tbe mortar in a box wbicb stood some 30 or 40 feet from tbe ■ building, and tben carry it to tbe masons wbo were laying concrete blocks in tbe wall of .tbe building. After tbe building-bad grown to the second story, tbe mortar was hoisted in buckets, wbicb were carried up to tbe workmen by means of a block and tackle operated by horse power. There were tbe usual helpers, or men to wait upon tbe masons while they were at work upon tbe walls, and it was tbe duty of these helpers to take charge of tbe buckets of mortar when pulled to tbe top of tbe building by tbe block and tackle apparatus, and carry them to tbe point upon tbe building where tbe masons needed mortar in their work. Tbe walls of this building which ap-pellee was erecting, were made of concrete blocks of uniform size, each block weighing about 90 pounds. Tbe *761block and tackle were used to carry tbe concrete blocks to tbe top of tbe walls in tbe same manner as tbe mortar was carried up. Tbe building in tbis instance was two stories in height, tbe top of tbe gable being about 28 feet from tbe ground. Tbe wall was about finished, when McMeekin, tbe foreman, came to tbe building and called away, for other work, all tbe men who bad been at work upon tbis building, except Perkins, tbe stone mason, and bis helper, Willie Moreland, who were on tbe top of tbe building, and tbe deceased, Samuel Moreland, who was on tbe ground mixing mortar. There were a number of other men inside of tbe building working at a forge; and when tbe gable of tbe building bad been finished there remained one concrete block unused, and tbe usual smaller pieces of blocks and material which bad been cut in making tbe angle of tbe gable. It was tbe duty of Willie Moreland, as the helper of Perkins, to clean up tbe rubbish after tbe work was finished. Just before tbe accident, McMeekin, tbe foreman, stopped at tbe mortar box and said something to Samuel Moreland as be passed; whereupon Samuel Moreland immediately called to bis son, Willie Moreland, who was on tbe top of tbe building, and said that McMeekin bad directed Willie Moreland to throw tbe unused blocks down from tbe top of tbe wall, and clean up. Samuel Moreland then went into tbe building and notified tbe men inside that tbe rubbish was to be thrown from tbe top of tbe building, and that they must not come out. He, however, after delivering tbe message, immediately turned and came out of tbe door, and was struck and lálled by tbe falling concrete block which bad been thrown from tbe top of tbe building by bis son, Willie Moreland. Appellant, as administrator of Samuel Moreland, filed tbis suit to recover damages for tbe alleged negligent killing of bis intestate. Appellee answered, denying tbe negligence; alleging that tbe Morelands were fellow servants ; and pleading contributory negligence upon tbe part of Samuel Moreland. At tbe conclusion of tbe plaintiff’s testimony, tbe circuit judge peremptorily instructed the jury to find for the defendant, and from tlhat ruling this appeal is prosecuted.

It is insisted that McMeekin, appellee’s foreman, was negligent in directing tbe concrete block to be thrown from tbe wall of tbe building, and that it should have been carried down by tbe same means by which it was carried to tbe top of tbe wall,- by tbe workmen in tbe *762ordinary way. It is evident, however, that the block and tackle apparatus could not be used to lower the concrete block, since the horse power could not be used for that purpose, and there was not sufficient hand power accessible to hold the weight of the stone. The usual way of carrying’ these blocks from place to place, was by putting* a small stick through the hole in the center of the block, with a man at either end of the stick; but the blocks: could not be so carried down the ladder. And, in this connection, it is insisted that appellee was negligent in removing to another place all of its workmen, and not leaving upon these premises a sufficient force of men to properly lower the stone by means of the block and tackle. The petition, however, confines the alleged negligence, not to the taking of the men away, or in ordering the block to be thrown down, but to the manner in which it was thrown.

Under the repeated adjudications of this court, we must confine ourselves to an examination of the act of negligence set forth in the petition. Having specified the acts of which the alleged negligence consists, the plaintiff can not, upon the trial, avail himself of any other acts of negligence; he is confined to the specifications of his petition. Edwards v. Chesapeake & Ohio R. R. Co., 108 S. W., 303; W. A. Gaines & Co. v. Johnson, 133 Ky., 507; Rowe v. L. & N. R. R. Co., 143 Ky., 826.

But, in our opinion, no negligence is shown since the appellee’s foreman took the necessary precaution to prevent any accident; and it was only by reason of More-land’s reckless disregard of the caution, which he himself had carried to the men on the inside of the building, that he received the injury. He had all the warning that could possibly have been required.

Furthermore, the deceased and his son, Willie More-land, were fellow servants in the fullest sense of that term. They were working in the same line of business, and receiving the same pay. They were, therefore, in the same grade of employment, and engaged in the same field of labor. In L. & N. R. R. Co. v. Brown, 127 Ky., 741, we said:

> “This doctrine of assumed risk by the servant has been further extended by this court until now it is well established that a servant can not recover from the master for injuries inflicted by the negligence of a fellow servant in the same grade of employment engaged in the same field of labor, and associated or working with *763the injured servant, however gross the negligence of the fellow servant may he. * * *

> “Public policy requires that, where the laborers are co-equals and engaged in laboring in the same field, or on the same railroad train, or in any other employment, each should exercise proper care in the conduct of the business, and loot to it that his co-laborer does the same thing; and, when he is told that this care and prudence is his only remedy against danger from the negligence of those employed with him, it not only makes him the more careful, but stimulates him to see that others exercise the same caution.”

Martin v. Mason-Hoge Co., 28 Ky. Law Rep., 1333; 91 S. W., 1146, is a case very similar to the case at bar.. In that case Martin was injured by a rock rolled down a hill by a fellow laborer in the same field of employment; and, in denying him the right to recover, this court said:

> “Nor does the fact that the superintendent of appel-lee directed the persons hauling the rock to roll them down the hill affect the question, because he testifies that he gave these persons orders not to unload any rock until the laborers at the foot of the hill had been notified to get out of the way and had had time to escape being injured. As the negligence consisted in failing to give proper notice and not in rolling the rock down at all, it necessarily follows that the injury, if due to negligence, was caused by the negligent manner in which the rocks were rolled by appellant’s fellow servants. down the hill. And for the injuries caused by the negligence of his fellow servants he can not recover.”

Pitts v. Centers, 30 Ky. Law Rep., 311, is to the same effect.

Deceased and his son were engaged in the same department of a common employment; and, being of equal rank in that employment, they were fellow servants. In this state of case, deceased assumed the risk of the injury, and appellee is not liable therefor. Trussle v. C., N. O. & T. P. Ry. Co., 142 Ky., 714.

Clearly, also, Moreland was guilty of contributory negligence. In Edwards’ Admr. v. C. & O. R. R. Co., 32 Ky. Law Rep., 1240; 108 S. W., 303, an old lady and her grandchild were at a station waiting for the train, which was coming in plain view, when the child crossed over the. tracks to the other side. The grandmother, although fully aware of the approach of the train, tried to cross *764over to where the child was, and was caught and killed. The court said:

> : “The appellee’s employees conld not anticipate that Mrs. Edwards would do so reckless and imprudent a thing as to undertake to cross the track in front of a 'rapidly approaching train, and, therefore, until she was on the track they could not be expected to do anything in anticipation of her unnecessary recklessness. * # * We are of opinion that the court properly ordered a peremptory instruction at the close of the plaintiff’s testimony.” ■

See also I. C. R. R. Co. v. Willis’ Admr., 27 Ky. Law Rep., 1187; 97 S. W., 21; Craddock v. L. *&*N. R. R. Co., 13 Ky. Law Rep., 18; C., N. O. & T. P. Ry. Co. v. Harrod’s Admr., 132 Ky., 445; C., N. O. & T. P. Ry. Co. v. Chavasse’s Admr., 122 S. W., 173.

So, in the case at bar, no one could 'reasonably have conceived that deceased would deliberately walk into a dangerous place of which he was fully aware. He had carried the message to the other laborers on the inside not to come out of the door, because it was dangerous; and yet, he immediately did what he had warned them not to do.

Judgment affirmed.