71 P. 253 | Kan. | 1903
The opinion of the court was delivered by
The only questions arising for our determination in this case are based upon the findings. There is but one question of merit in the case. It is not contended by the defendant that there is no evidence to support the findings made ; nor is it contended that the turntable was not old, worn, and defective. • But it is contended that Bancord knew, or,
While the jury were not specially interrogated as to the space between the table rails and the ground rails, it is conceded that this space was from four to seven inches in length. The jury found that the tipping o.f the table rails below the ground rails, the battered and worn condition of the ends of the rails, and the large opening between the ends of the table rails and the ground rails caused the injury; hence, it must be assumed that the company did not meet the requirements of its duty to furnish reasonably safe instrumentalities in the performance of this work. The question, therefore, is, Did Bancord assume the hazard incident to their use in this defective condition? That is to say, did he know, or by the exercise of reasonable precaution for his own safety ought he to have known, of the defects, and did he understand, or by the exercise of ordinary observation ought he to have understood, the risk' he was incurring in making use of the instrumentalities in their defective condition? If so, he assumed the risk and cannot recover.
The courts have sometimes arrived at this conclusion by consideration of the varying powers of observation possessed by different individuals, or by confusing the doctrine of assumed risk with the defense of contributory negligence. (Railway Co. v. Michaels, 57 Kan. 474, 46 Pac. 938; Rouse v. Ledbetter, 56 id. 348, 43 Pac. 249.) But, reduced to its last analysis, the doctrine of assumed risk must rest for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for resulting injury. To raise an implied agreement the risk assumed must be known to the employee, or it must be of such nature as, by the exercise of reasonable obseiwation and caution for his own safety, he should have known it. It can never be said that one has agreed to assume responsibility for that of which he had no knowledge, .or of the existence of which he is not chargeable with notice.
“Assumption of risk is a term of the contract of employment, express or implied from the circumstances*89 of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant’s duty shall be at the servant’s risk. In such cases the acquiescence of the servant in the conduct of the master does not defeat a right of action on. the ground that the servant causes or contributes to cause the inj ury to himself ; but the correct statement is that no right of action arises in favor of the servant at all, for, under the terms of the employment, the master violates no legal duty to the servant in failing to protect him from dangers the risk of which he agreed expressly or impliedly to assume.” (Narromore v.
Mr. Barrows, in his work on Negligence, section 43, page 111, says :
“It should be observed that it is not sufficient that the condition of the place, machine, utensil, or equipment is within the knowledge of the servant. In order to establish his assumption of the risk, it must appear that he knew, or in the exercise of ordinary prudence should have known, that the condition involved possible injury or risk. Russell v. Railway Co., 32 Minn. 230, 20 N. W. 147; Mundle v. Manufacturing Co., 86 Me. 400, 30 Atl. 16.”
In Gates v. State, 128 N. Y. 221, 28 N. E. 373, it was said :
“While in work of an inherently dangerous nature the workman is ordinarily held to assume that certain risk which must attend upon its execution, that rule involves, and depends for its application upon the knowledge, or means of knowledge, upon the workman’s part of the attendant peril to him. Such knowledge may be presumed to be possessed by reason of previous employment and experience, or to be suggested by ordinary observation and appearances. If the workman is without experience in the particular work required of him, and if, as here, danger for him exists from causes not apparent, but which are known to his employers, I think it unques*90 tionable in principle that an obligation should be deemed to rest upon them to communicate such information as would apprise the workman of the nature of the work, and of the possible risks in its execution.”
In Russell v. Railway Co., supra, it was held :
"A servant does not necessarily assume the risks incident to the use of unsafe machinery furnished him by his master because he knows its character and condition.
"It is also necessary that he understood, or, by the exercise of common observation, ought to have understood, the risks to which he is exposed by itsuse.”
In the opinion it was said :
"That the defendant was guilty of negligence in supplying its servants with such unsafe instrumentalities is very clear, and indeed is not seriously controverted. But defendant’s contention is that plaintiff knew, or had the means of knowing, the unsafe character of these couplings, and, having continued their use without objection, he assumed all the risks incident thereto. We shall not here enter into any general discussion of the question when and under what circumstances a servant takes upon himself risks incident to the use of unsafe machinery, by continuing to use it without objection after knowledge of its defective character. We simply say that it is not enough that the servant knew or ought to have known the actual character and condition of the defective instrumentalities furnished for his use. He must also have understood, or by the exercise of ordinary observation ought to have understood, the risks to which he is exposed by their use.”
While it may be said from the findings made by the jury that Bancord knew of the space between the table rails and the ground rails, and the battered and worn condition of the ends of these rails, and the old and worn condition of the turntable, because such defects were open and obvious, yet, as the jury also found,
It follows that, as the general findings are not inconsistent with the general verdict, and as it cannot be held from such findings, as a matter of law, that plaintiff assumed the risk to which he was exposed, the judgment must be affirmed.
