75 P. 466 | Kan. | 1904
The opinion of the court was delivered by
James Buoy, an employee of the Clyde Milling and Elevator Co'mpany, who was assisting in the construction of a warehouse, was injured by the fall of a negligently constructed scaffold. Engaged in the work at the same time were Richa, a carpenter receiving $2.50 per day, and Buoy, a man of all work who received only $1.15 per day. Miller, the general manager of the company, employed Richa to complete the building, and told him that he would send Buoy around to help him. According to plaintiff’s testimony, Richa. had worked some time and had practically completed the scaffold when Buoy arrived at the building. Buoy inquired if the scaffold was safe, and the reply of Richa was that it could not be pulled down with a team. Plaintiff went upon the scaffold with Richa and within a few minutes it fell to the ground and the plaintiff was seriously injured.
In this action for damages the plaintiff alleged that the injury was caused by the negligence óf the defendant and its. employees in the unsafe and defective way in which the scaffold was built; that plaintiff had nothing to do with the construction of the scaffold and had no knowledge of its defective and insecure condition. The defendant pleaded that the injury was the result of plaintiff’s negligence and not
“1. Were not the brackets, the braces, the pickets and the plank or planks used as flooring on the scaffold in question all of good, safe, sound material and fit for the purpose for which they were used ? A. Yes.”
“3. Was not the plaintiff present and assisting in completing and erection of the scaffold in question ? A. No.
”4. Did not the plaintiff have ample opportunity to examine and inspect the scaffold as erected, and every part thereof, to ascertain as to its condition and the manner in which it was erected and was standing, before going to work thereon ? A. Yes.
“5. Was any officer or agent of the defendant corporation present at the time the scaffold was erected and before the accident? A. Yes.
”6. If you answer the preceding question in the affirmative, state what officer of the corporation. A. Richa, vice-principal.
“7. Was not the witness Richa an experienced,
“9. Did the witness Richa have any supervision or control over the plaintiff in the work that they were doing on the day of the accident. A. Yes.
“10. If you answer the last question in the affirmative, state what supervision or control said Richa had of the plaintiff, and from what source or authority he procured the right to such supervision or control. A. Vice-principalship, from Miller.
“11. Did not the plaintiff receive his orders as to the work done or to be done on the day of the accident from Miller, the manager of the defendant, and from no other person ? A. Yes.
“12. Did either the plaintiff or the witness Richa have any authority or control over the other? A. Yes.
“13. If you answer the last question in the affirmative, then state what such authority or control was and from what source it originated. A. As vice-principal, from Miller.
“14. Did the defendant or any of its officers or agents in any way direct, superintend or have charge of the erection of the scaffold in question? A. Yes.
“15. If you answer the previous question in the affirmative, then state which officer of the defendant, and what such officer did' towards directing, controlling or superintending the erection of the scaffold in question. A. Vice-principal Richa erected the scaffold.
“16. Was not such scaffold, erected in the manner in which this scaffold was erected, an ordinarily safe place upon which to perform the work necessary to be done at that time? A. No.
“17. If you answer the preceding question in the negative, in what respect was such scaffold unsafe ? A. Defective in bracing.
“18. Did not the defendant and its officers and agents use all proper and reasonable care in providing for the safety of the plaintiff in doing the work that he was to do on the day of the accident? A. No.
“19. If you answer the preceding question in the
“20. Under the instructions under which the plaintiff and the witness Richa were, working on the day of the accident, was it any more the duty of one than the other to erect any scaffold that might be needed for use in the work which they were to do ? A. Yes.
“21. If you answer the preceding question in the affirmative, then state which one, and why. A. Richa, vice-principal.
“22. Was it not necessary, in order to do the work which plaintiff and the witness Richa had been ordered to do on .the day of the accident, that a scaffold-be erected? A. Yes.
“23. If you-find for the plaintiff, state how much, if any, you allow for medical attendance and treatment ; how much, if any, you allow for physical suffering ; how much, if any, you allow for mental suffering how much, if any, you allow for loss of time, and how much, if any, for permanent injuries. A. 1st, $5.90; 2d, $100;' 3d, ,$50; 4th, $69; 5th, $844.10. Total amount allowed, $1069.
“24. Was not the plaintiff just prior to the accident standing on the plank beyond and outside of the west bracket ? A. No.”'.
The defendant objected to the answers made to- . several questions which were all overruled except as to No. 10, which, under the direction of the court, was reconsidered and a modified answer returned, striking out “Yice-principalship, from Miller,” and inserting “By being a superior workman.” The defendant asked that certain of the findings be set aside because they were not sustained by the evidence, not responsive to the questions, and were contrary to the law and the instructions of the court. This motion was overruled ; whereupon they asked for judgment in favor of the defendant on the findings, but this motion was likewise overruled. A motion- for a new
“on the ground following and for no other ground: That the court committed error in refusing to sustain the demurrer filed and presented by the defendant to the evidence introduced by plaintiff, the court holding that under the evidence presented the plaintiff was not entitled to recover and that the case should not have been submitted to the jury.”
The order granting a new trial is assigned for error. Ordinarily, courts hesitate to disturb an order granting a new trial, where both parties are afforded another opportunity to have a fair and impartial trial of the case on its merits. So it has been said that a much stronger case for reversal must be made where a new trial, is allowed than where it is refused. A trial court has quite an extended discretion in the granting of new trials, and such an order will not be set aside unless it can be said that the court committed error with reference to some pure, simple, unmixed question of law. Where several grounds are alleged and the trial court does not state upon what particular ground the motion is allowed, the supreme court will sustain the order if it can be done upon any of the grounds assigned.
Most of the statutory grounds were alleged in the motion, but the court stated the particular ground upon which the motion was allowed, namely, that error was committed in the refusal to sustain the defendant’s demurrer to plaintiff’s evidence. To remove any possible question, a recital was added that it was sustained for no other ground. The court having re
The ruling on the demurrer to the evidence is a decision of law occurring at the trial, and is not available as error unless raised by a motion for a new trial. It was so raised in this case, and when presented in that way the case was in the same situation, and the trial court was governed by the same rules, in measuring the evidence, as it was when the demurrer was originally considered and decided. If the demurrer should not have been sustained a new trial should not have been granted because of the decision overruling
A very different question would be presented if the .ground for a new trial was that the verdict was not sustained by sufficient evidence. There the court might weigh the conflicting evidence, and, if the verdict did not meet with its approval, its duty would be to set it aside and grant a new trial. But before the court can take a case from the jury on a demurrer to evidence it must be able to say that, admitting every fact proved which is favorable to plaintiff, and admitting everything which is fairly inferable from the evidence most favorable to plaintiff, he has utterly failed to make out some one or more of the material facts of his case. (Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan 1, 1 Pac. 605; Christie v. Barnes, 33 id. 317, 6 Pac. 599.) Measured by these rules, the case should have been submitted to the jury, and, therefore, the ruling submitting it to the jury afforded no ground for a new trial. There was testimony tending to sustain the averments of the petition; testimony from which the jury might have inferred that the scaffold was carelessly built, and that Richa, who built it and was in charge of the work when plaintiff went to his assistance, was culpably negligent.
The furnishing of a safe place to work and safe appliances with which to do the work are among the absolute duties of the master. From the testimony a fair inference may be drawn that these duties were not performed. It is said, however, that plaintiff
We cannot say that he should have known of the insecurity of the scaffold. Unless his attention was drawn to defects or to the dangerous condition, he was not required to institute an investigation, but might rest on the assumption that the company had performed its duty. The posts and braces which supported the brackets of the scaffold rested on the track of a railroad recently built. The ground upon which the braces stood was somewhat loóse, and the braces reached the ground over and across a rail of the track which acted as a fulcrum when there was a weight on the platform of- the scaffold.. • When the men and material rested on the scaffold the effect was to spring the braces over the' rail, tipping up their ends and thus rendering the structure insecure. It does not appear that his attention was drawn to this feature of construction nor to the danger to which he was exposed.
As we have seen, the scaffold was not built by him, and the accident occurred within a few minutes after he began work on it. It cannot be arbitrarily said that he knew, or should have known, of the danger to which he was exposed. Under the law, it is not only necessary that the employee shall know of the facts constituting the negligence of the master, or
It follows that the court erred in granting a new trial on the ground stated, and, therefore, its judgment must be reversed, with directions to enter judgment upon the findings and verdict.