104 Kan. 505 | Kan. | 1919
The opinion of the court was delivered by
The Santa Fe Railway Company, in connection with its water service, constructed a well of masonry on a frame foundation resting on the bed of the Walnut river. The well was twelve feet in diameter and twenty-five feet high, and
1. The defendant asserts that the boy'was not an employee of the company, but a mere volunteer, and that there was no evidence to the contrary. One witness testified to this: During the forenoon of the day of the drowning the-foreman in charge of the work said they would have to have a boat in order to get the drift away. The witness told him that Willie Brown had a boat, and suggested that he get him. He then saw Willie and told him there was a chance to get a job, advising him to see the foreman. Afterwards he saw the boy talking with the foreman, but could not hear what was said. Another witness gave testimony to this effect: In the afternoon of the same day the boy was at work with the railroad men. He would take the end of a rope from- the west shore and give it to a man on the well, who would fasten it to a part of the drift, which would then be pulled away, this operation being repeated several times. Finally, the foreman told the boy to go to the well and get the workman who was there, saying that they would then quit. The boy undertook to do so, but the well fell over just as he was reaching it, and the workman jumped into the boat, which was drawn into the vortex and half filled with water. The man and the boy jumped out, or were thrown out, and the boy was drowned. Some of this testimony was contradicted, but its credibility was for the jury, and it warranted the inference that the foreman had engaged the services of the boy.
2. The foreman testified that he had been in the water service of the company for twenty-five years; that he had jurisdiction of that service from Arkansas City to Purcell and Shawnee — about 800 miles; and that he hired and discharged the men under him, but that a rule of the company forbade the
8. A reversal is also asked on the ground that no negligence on the part of the defendant was shown. The jury were asked what acts or omissions of the defendant caused the death of the deceased, and replied: “Negligence on part of defendant to provide necessary means for escape.” The contention is made that this finding excludes all other forms of negligence. It is to be interpreted, however, in the light of the three preceding findings, which were to the effect that the deceased had not been warned that the place where the men were working was dangerous; that he did not have as good an opportunity as the defendant to know the danger of his boat being drawn into the vortex if the well should fall; and that the defendant had a greater opportunity to know such fact by reason of former experience. These three findings show clearly that the jury were of the opinion that the defendant ought to have warned the boy of the dangerous character of the work he was doing. Therefore, this form of negligence was not cut off by their failure to include an express reference to it in their answer to the next question. (Springer v. Railroad Co., 95 Kan. 408, 148 Pac. 611.) The well was leaning upstream while the work was being done. This appears to have been due to the action of the current in undermining its foundation. Obviously it was supported by the pressure of the water against the drift wood, and when this was removed it fell against the current, which was not strong enough to hold it up without the purchase afforded by the accumulated débris. The situation was such that it could reasonably be believed that persons used to such work ought to have anticipated the result which followed, while an inexperienced boy could not have been expected to foresee it. ,The foreman testified, in effect, thát one reason why the man left on the well was chosen for that purpose was that he could swim and could take care of himself if anything happened; that he knew the boy was too young to be employed in dangerous work; that he knew this work was very dangerous, and would n’t employ a minor to do it; and that he was
4. Complaint is made of the wording of an instruction to the effect that even if it afterwards turned out that the boy would have been saved if he had remained in the boat, but had jumped out of it at a time when it reasonably appeared to him that it was more dangerous to stay with it than to leave it, this would not relieve the defendant of liability. We do not regard it as open to the objections made.
The judgment is affirmed.