84 Kan. 117 | Kan. | 1911
The opinion of the court was delivered by
The appellees, Michael Aaron and Jeanette Aaron, recovered a judgment for $10,000 against the appellant, the Missouri and Kansas Telephone Company, for the violation of its duty to their son, Walter, through which he lost his life. The action was brought against the appellant and the Delaware Mutual Telephone Company, of Lansing, but before the case was submitted to the jury the Delaware Mutual Telephone Company was dismissed from the case.' In the petition it was alleged that Walter Aaron was an employee of the Delaware company, which, under contract with appellant, had two wires upon the poles of appellant, and that it was the duty of appellant to have proper poles and maintain them in a safe condition for its own operatives as well as those of the Delaware company who found it necessary to climb and work upon them; that appellant had planted new poles along the line and had removed its own wires from the old and attached them to the new poles; that Walter Aaron came along afterward and was transferring the two wires of the Delaware company from the old to the new poles, and that when he had climbed an old pole for that purpose and had stripped the wires from that pole, to which he was strapped, it broke and fell, crushing and killing him. It was further alleged that the pole was in a low, wet place, had rotted below the surface of the ground and was unsafe for use, and that if appellant, who knew or should have known of its unsafe condition, had done its duty by substituting a-sound pole for the defective one, or by bracing it so as to make it secure, the injury would not have been in
The answer of the appellant was a . general denial, and a special denial that appellant was under any obligation to the Delaware company to maintain its poles' in a condition to be safe for the operatives of that company; and it further alleged that the deceased came to his death through his own want of care.
After the evidence of appellees had been introduced they dismissed the action as to the Delaware company without prejudice.
The testimony included two written contracts between appellant and the Delaware company relating to an interchange of business, the connections to be made, the use of telephones and switchboards, the maintenance of lines, the placing of the wires of one on the poles of the other and fixing the compensation for such use, a provision releasing one from loss or damage caused by wires or fixtures, and containing other stipulations as to the duties of each company and its obligations to the other.
In submitting the case to the jury the court instructed “that if you believe from the evidence in this case that it was the duty of the Missouri and Kansas Telephone Company, under a contract with the Delaware Mutual Telephone Company, to maintain the line of poles in question, including the particular pole in question, in a reasonably safe condition for the linemen- of the Delaware Mutual Telephone Company to climb and operate upon; that it failed so to do, and because thereof the death of Walter Aaron was caused, without fault on his part, then I instruct you shall find for the plaintiffs,” etc. In, another instruction the jury were told, in effect, that if they found it was the duty of the appellant to maintain the poles in a rea
The duty of appellant to the Delaware company in respect to the maintenance of the poles, including the one which fell, depended mainly upon the terms of the contracts between these companies. The contracts were in writing, and their meaning and effect were questions of law, exclusively within the province of the court. To send the jury to a written contract to find the respective duties and obligations of the contracting parties was to leave the jury to decide the law as well as the facts. It was the province of the jury to determine all questions of fact involved in the case, after the court had advised them as to the governing rules of law and instructed them how to apply those rules to the facts brought out in the testimony. To impose on the jury the task of interpreting a contract and of determining the duty and responsibility of appellant under the contract is to require them to perform a function which belongs to the court alone — a duty which it can not surrender or evade. In Bell v. Keepers, 87 Kan. 64, it was ruled that “when a written instrument is admitted in evidence, it then becomes the duty of the court to construe and determine its legal effect, the relation of the parties thereto, and to include such determination in the instructions to the jury.” (Syl. ¶ 2; see, also, Brown v. Trust Co., 71 Kan. 134.)
The duty of appellant to one employed by and working for another company is not only a matter of law,
Another instruction complained of is:
“You are further instructed that it is the duty of the master to his servant to exercise ordinary care, having regard to the hazards of the service, to provide the servant with reasonably safe working places, machinery, tools and appliances, and to exercise ordinary care to maintain them in a reasonably safe condition of repair.”
As the Delaware company, the employer of the deceased, had been dismissed from the case, and the relation of master and servant did not exist between appellant and the deceased, this instruction was inappropriate and may have been misleading. In answer to special questions the jury found that deceased was working for the Delaware company, and that the
For the error of the court in submitting the case to the jury the case is reversed and the cause remanded for a new trial.