96 Kan. 691 | Kan. | 1915
The opinion of the court was delivered by
The deceased had for about two years worked in the defendant’s coal chute at Salina. There was a system of buckets for lifting the coal, which buckets when loaded weighed from eighty to a hundred pounds each and were elevated
The defendant pleaded a general denial, contributory negligence and assumption of risk.
It was shown that Martin had been at work at the chute some two years and had oiled the machinery from top to bottom, and had put the belt on and knew it would come off, and knew there were no appliances to keep the buckets from running backwards except the belt, and that he had been instructed when he first began work to always put the belt on before he removed the obstruction in the bottom of the pit.
The jury found the defendant negligent in having no other safety device than the belt, that the plaintiff was not guilty of contributory negligence, and that while he had reasonable opportunity to know the conditions he did not have reasonable
The defendant complains that its demurrer to the evidence and its motions to direct a verdict and for judgment on the' special findings were denied, and also that its motion to set aside the findings of negligence and lack of reasonable opportunity to understand the danger was also denied. No motion for a new trial was filed. The argument is that there was no proof that the elevator was out of repair and that the only fault the plaintiff can find is with its construction. In other words, that the mere failure to provide an appliance for stopping the backward course of the buckets was not of itself negligence as the jury found. As the case was brought under the federal employers’ liability act (Part 1, 35 U. S. Stat. at L., ch. 149, p. 65) attention is called to decisions both state and federal thereunder, and it is argued that the only duty resting upon the defendant was to exercise ordinary care and diligence in furnishing a proper elevator and that this duty was performed. It was testified that to go to the proper place to see that the belt was on before attempting to remove the obstruction, as directed by the foreman when the deceased was employed, would require a course of travel including the mounting of certain stairs covering in all from six to eight minutes of time; that the pit was dark, and the only light by which the deceased, who was on the night shift, could see to remove the obstruction was his lantern; that the workman who attempted to extricate the body from the fatal crush of the bucket came near meeting a similar fate and outside help and apparatus were necessary to rescue him. It was testified that a simple locking device could have been easily provided, and that an appliance to prevent the belt from slipping off would have been practicable, though on this point there was a difference of opinion. Without going into the complex details of the machinery it is sufficient to say that there was evidence to support the conclusion of the jury that negligence was shown in the character of the elevator and its equipment with no safeguard or device to prevent the very kind of accident which happened.
Neither can it be said as a matter of law that the finding as
Notwithstanding the testimony showed that the plaintiff had reasonable means of knowledge of the machinery and its condition, the finding of the jury that he did not realize the danger of the situation when he did not remove the obstacle places the matter within the rule frequently announced that such appreciation must exist in order for assumption of risk to bar recovery. (King v. King, 79 Kan. 584, 100 Pac. 503; Carillo v. Construction Co., 81 Kan. 823, 106 Pac. 1050; Every v. Rains, 84 Kan. 560, 566, 115 Pac. 114; Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105; Suniga v. Railway Co., 94 Kan. 201, 146 Pac. 364.)
No substantial error appearing the judgment is affirmed.