91 Kan. 378 | Kan. | 1914
Lead Opinion
The opinion of the court was delivered by
The plaintiff, a brakeman, recovered for the loss of an arm, alleged to have been caused by the negligence of the defendant in furnishing a poor quality of oil for his lantern. Upon the first trial, a demurrer to the plaintiff’s evidence was sustained, but upon' appeal it was held that he was entitled to go to the jury upon the question whether the injury was occasioned by the want of a better light. (Anders v. Railway Co., 83 Kan. 218, 109 Pac. 773.) A second trial resulted in a judgment wliich the defendant claims should be reversed for the reasons that the alleged bad oil was not the proximate cause of the injury; that no promise-was made to the plaintiff to furnish him a better quality and the risk of using what 'he had was assumed by
As to the first proposition, the jury determined that, the quality of the oil was the cause of the injury, and it can not be said that .this determination was entirely unsupported by the evidence. In connection with this, branch of the case, however, the plaintiff testified that-when he approached the obstruction he had- time to have stopped and thrown it out of the way had he-wanted to; that he had time but did not have much light..
“Q. And you had plenty of time to stop and look it-over and see what it was and you did n’t do it? You had plenty of time to pick it up and throw it out of the-way .if you wanted to, did n’t you? A. I suppose I had. time, yes, sir,"but I didn’t do it. . . . '
“Q. You could have stopped and observed the thing,, could n’t you? . You was n’t hurried there at that time?" A. No, sir; I was n’t .in no hurry.
“Q. You could have stopped fight there and kicked, the thing over and thrown it out of the way if you had wanted to; that he had time but did not have much, light.
Qúestion No. 32 with'its answer is as follows:
“Q. If the plaintiff had stopped and'made an examination of the obstruction, • could he have detefmined what it .was — its size, nature. and character — by the light he was using? A. If he had time.”
Certain other answers are • criticized, but they include the element of opportunity as well as time to observe the obstruction, and opportunity under the circumstances involves the matter of sufficient light. But', the answer to. question No. 3-2 refers .to a lack of time not shown by the plaintiff’s own testimony, and the question was a proper one which entitled the defendant: to an answer in accordance with the plaintiff’s own undisputed evidence.
“Before such a request and promise would relieve an employe of the assumption of risk, the request must be made for the purpose of securing protection by the employe from apprehended danger to himself, and his continuance in the employment thereafter with a defective instrumentality must be induced by the promise to remedy the defect.”
It is urged that there was nothing shown from which it could fairly be said that any promise was made by the conductor, and hence the plaintiff could not have been induced thereby to remain at work; that in fact no request was made but a mere general complaint with no purpose of securing protection from apprehended danger. Railroad Co. v. Mealman, 78 Kan. 496, 97 Pac. 381, is cited. There the plaintiff testified that he had never thought of the defect as being dangerous, and hence it was held that he did not report it for the purpose of escaping a threatened danger. It was also laid down, as it has been by the courts generally, that
It was testified without dispute that for fifteen years the company had supplied the best signal oil the market afforded, oil manufactured by a reputable firm, and that it had stood the tests made by the company; that this quality of oil was tested at the Topeka storehouse, and thence shipped out to division points, including Emporia; that a tank load was received at Topeka about January 1, 1907, a sample tested by the defendant’s chief chemist, and after his acceptance placed in stock ; that a tank was shipped to Emporia January 21, which was the last until after the occurrence of plaintiff’s injury.
In addition to their general verdict the jury were asked to make seventy findings of fact. It was found that the signal oil used in the lanterns of the trainmen was purchased of a reputable and experienced manufacturer, who had been furnishing it for fifteen years, during which time it had stood the tests made by the defendant and had been accepted by it.
“Q. 45. Was the quality of the signal oil used by the defendant Company in its lanterns the best that could be purchased in the market? A. Yes.
*384 “Q. 62. Was the oil with which the plaintiff Anders filled his lantern at Emporia shipped from Topeka to Emporia by the defendant Railway Company? A. Yes.
“Q. 63. If you answer the above question yes, then state whether the oil was inspected and tested as to its burning qualities by a chemist of the Railway at Topeka? A. Yes.
“Q. 41. Did the plaintiff procure the oil he was using on the night of the accident at Emporia, Kansas, about a week or ten days before the accident? A. Yes.”
In the eleventh instruction the jury were told that if the company exercised reasonable and ordinary care in furnishing plaintiff such á quality of oil as to afford a reasonably clear and distinct light it would not be liable even though the oil actually used by him at the time of the injury was not of reasonably good quality. It is insisted that this was the proper criterion.of liability and that the findings show not only ordinary but extraordinary care. If the foregoing findings were all the jury had made it is clear that under this instruction the defendant would.be free from liability.
But the following answers were also returned:
“Q. 21. Did the lantern that the plaintiff was carrying go. out when he was descending from the car, just before the accident? A. Yes.
“Q. 58. If you find that the oil in plaintiff’s lantern was defective at the time of the accident, then state in what respect it was defective ? A. Having a tendency to smoke chimney, crust wick, insufficient’ light and go out.
“Q. 46. If you find that the plaintiff’s injury was caused by any negligence on .the part of the Railway Company, please state fully in what such negligence consisted? A. Bad oil.” ’
The plaintiff, testified that some four days before the injury he told the conductor that there was something wrong with the oil. “I said, it is awful poor stuff, I can’t get any light out of it. He said, it has already been reported. Q.. Did he say how it had been reported? A. He says, I have already reported it, .that is
“If a man would make the declaration that the oil was bad and he could n’t use it, I would give him a requisition for more oil. It was not my duty to see that good oil is had. It is the Company’s duty to furnish good oil. The brakeman would report to me. If a brakeman has got bad oil and reports it to me it is the Company’s duty to see that he gets good oil. I would notify the Company of the condition he told me of.
“Q. Then after he has reported to you what is your duty? A. I would make some inspection myself.
“Q. Suppose it was bad oil, what is it your duty to do? A. I would see how it burned for me, how it burned for other people. If he had oil that he could n’t use I would return it to the storehouse and get new oil. I would get more oil. I could n’t tell as to the kind.”
The defendant’s chief chemist stated on cross-examination that oil which would crust the wick so as to make a flame go below one inch in twelve hours, thus giving a poor light, would be an inferior oil which he would not pass. Instruction No. 12 was that if the oil furnished the plaintiff was not of such quality as to afford a reasonably clear and distinct light and he reported it as bad to the conductor, and he was the proper one to whom to make such report, it then became the duty of the defendant to exercise reasonable care in remedying the defect, and if it failed to do so within a reasonable time after it had notice or reasonably should have known of the defect it would be liable. This is complained of as being a departure-
The plaintiff in his brief says:
“The jury found that the company itself had taken reasonable measures to supply itself with fair oil, and it also found upon the testimony that the. particular, oil' used by Anders was furnished by the .company and was bad oil; and that this oil was reported to the conductor, and good oil'was not supplied.”
But such a construction practically ignores finding No. 45, which is almost if not entirely contradicted also
Certain other rulings are complained of but we find no substantial error therein.
The judgment is reversed and the cause remanded for further proceedings.
Dissenting Opinion
(dissenting) : I dissent from-that part of the opinion and corresponding portions of the syllabus which hold that a promise to remedy a defect could be implied from the fact that thé person to whom the complaint was made stated that he had reported it.
The jury find, as they were compelled to find from the undisputed facts, that the defendant had exercised not only reasonable diligence but extraordinary diligence to furnish the best quality of signal oil that could.be purchased in the market, and had done this for fifteen years. The case is now sent back for another trial to