81 Kan. 823 | Kan. | 1910
The opinion of the court was delivered by
Sebastian Carillo, while in the employ of the United States Construction and Finance Company, was engaged in helping to place a heavy pump in an excavation over a well. The pump was being lowered on a low-wheeled wagon, or truck, along an inclined surface, into its position, when in some way the workmen handling it lost control and it broke loose and plunged to the bottom of the excavation, catching and injuring Carillo. He sued the company for damages, alleging that his injury was due to its negligence. The court sustained a demurrer to his evidence and he appeals.
Evidence was introduced tending to show these facts: The company was constructing a sugar factory. The
The company contends that there was an entire lack of evidence to show that the work of installing the pump was being done by its employees acting in its behalf ; that there was nothing to show that Goodrich and Thompson were employed by the company, or that Releford in undertaking to help them was acting within the scope of his employment. We think otherwise. The evidence sufficiently showed that the work was being done for the benefit of the company, in part at least by its employees. The inference was justifiable that the company had caused the work to be done, either under
A further contention in support of the ruling of the trial court is that, assuming Carillo’s injury to have been received while acting within the scope of his employment by the company, he can not recover because the negligence complained of was that of a fellow servant. One of the forms of negligence alleged in the pe
A final contention is that the plaintiff’s recovery must be denied upon the principle of assumption of risk. The evidence did not conclusively show that Carillo knew it was dangerous to attempt to handle the pump without the use of mechanism, and knowledge of that fact is not imputable to him as a matter of law. (King v. King, 79 Kan. 584.)
The judgment is reversed and the cause remanded for further proceedings.