83 Kan. 533 | Kan. | 1910
The opinion of the court was delivered by
Jesse Casteel, between fifteen and sixteen years old, was injured while in the employ of the Pittsburg Vitrified Paving & Building Brick Company. He sued the company, and recovered upon the theory that his employment was in violation of the statute providing that “no person under sixteen years of age shall be employed at any occupation nor at any place dangerous or injurious to life, limb, health or morals,” and making it a misdemeanor to employ such a person in violation of that provision. (Laws 1905, ch. 278, §§ 1, 4, Laws 1909, ch. 65, §§ 2, 5, Gen. Stat. 1909, §§ 5095, 5098.) The defendant appeals, its principal
The evidence tended to show, and therefore for the present purpose may be regarded as haying shown, these facts: The defendant was engaged in the manufacture of brick. Shale for use in the process was excavated by a steam shovel and loaded into dumping cars, which were drawn by a horse along a track for a distance of about 800 feet and then hoisted up an incline by machinery to the brick plant. The plaintiff’s employment required him to ride upon the loaded cars from the shale pit to the incline, and upon empty cars on the return trip, driving the horse, which, however, was so well trained that no lines were used or needed. The car was not provided with a brake. The track was of uneven height, and curved often. For a part of the distance it ran so close to a perpendicular bank of shale, about twenty feet high, that the cars frequently scraped it in passing. The rails were about two feet and a half apart. The wheels were fourteen inches in diameter; the distance between the front and rear pair was two feet. The box was seven feet long, five feet wide, and fifteen inches deep, its top being five feet above the track. Each corner was fastened to the truck below it by a chain, and the car was emptied to either side by unfastening the chains on the other. The chains were loose, having about three or four inches slack, allowing that amount of play to the box, which swayed from one side to the other according to the inclination of the track and the disposition of the load. The plaintiff was directed so to ride the car as to keep it in balance by the weight of his body — to shift his position in going around curves to keep the car from jumping the track, which it did quite often, sometimes four or five times a day, more often when it was empty. Pieces of shale would sometimes fall to the track from the bank or from the cars. These were usually soon removed by
The statute provides a penalty for its violation but does not in terms give a right of action to any one injured thereby. Nevertheless, by the weight of authority and the better reason, such right exists. (Harrod v. Latham, 77 Kan. 466. See notes in 7 L. R. A., n. s., 335, and 9 L. R. A., n. s., 385; 2 Labatt, Mas. & Ser. §§ 799, 800.)
The' defendant maintains that the plaintiff’s occupation was not dangerous, but safe, since he had merely to drive a gentle horse a short distance back and forth, hitching and unhitching it to the cars, having no loading or unloading or lifting or carrying to do, and not being engaged about any machinery; that if he became exposed to any risk in the course of his employment through the failure of his employer to take proper precautions for his safety his remedy was in an action for common-law negligence, and not under the statute. Ordinarily whether an occupation is dangerous within the meaning of such a statute is a question of fact for the jury. (Hickey v. Taaffe, 39 N. Y. Supr. Ct. 7; Gallenkamp v. Garvin Machine Co., 91 N. Y. Supr. Ct., App. Div., 141; Braasch v. Michigan Stove Co., 153 Mich. 652, 655; Hankins v. Reimers, 86 Neb. 307, 309.) Both New York cases cited were reversed by the court of appeals (Hickey v. Taaffe, 99 N. Y. 204; Gallenkamp v. Garvin Machine Co., 179 N. Y. 588), the first upon a different question. In the latter case the court of last resort adopted a dissenting opinion, which seems to support the theory that a statute forbidding the em
The contention is also made that there was no evidence that the violation of the statute was the proximate cause of the plaintiff’s injury. The jury were
A part of the defendant’s argument is based upon the theory that whatever danger there was in the plaintiff’s employment originated with the lodging of the lump of shale against the track. But the evidence warranted the view that a similar situation was likely to arise at any time and that the plaintiff was in constant peril of being thrown from the car in the same or some similar way.
Complaint is made of the admission of evidence showing all of the circumstances surrounding the incident. Some of.it may have been unnecessary, but none of it was prejudicial.
The contention is made that no recovery could be had unless the defendant knew the plaintiff’s occupation to be dangerous. The statute, however, bases liability upon the fact of danger, not upon the employer’s knowledge of it. Even a mistaken belief that the em
The judgment is affirmed.