46 Kan. 581 | Kan. | 1891
The defendant in error brought an action in the district court of Chase county, against the plaintiff in error, to recover a judgment for a personal injury to himself, resulting, as he claimed, through the negligence of plaintiff in error. A trial was had by a jury, and a verdict of $700 returned in favor of defendant in error for that amount, and costs. This proceeding is to reverse that judgment. That portion of plaintiff’s petition which sets out the negligence claimed, and concerning which evidence was offered at the trial, reads as follows:
“That on or about the 13th day of March, 1888, the said defendant was engaged in the digging and constructing of a tank well for its business, near its line of road, and also near to its round-house between Strong City and Cottonwood Falls, in Chase county, Kansas; that the said plaintiff was in the employ of the said defendant railroad company as a laborer, among others at said time, digging in said well, and filling dirt in boxes to be elevated out of said well; that said defendant had the furnishing, and it was its duty to furnish all the appliances, machinery, structures and conveniences in and about the digging, construction and operation of said well; that over the top of said well there was erected a scaffolding attached to piles driven in the ground; that between the four cross-timbers or beams that constituted the frame of said scaffolding there was a square opening through which the boxes for elevating dirt out of said well ascended and descended; that on the top of the frame of said scaffolding there were two upright shafts or pieces of timber secured at the bottom of said frame, and immediately over the top of said well; that on the top of said pieces there was a cross-piece of timber, to which, about midway, was attached a pulley, through which said pulley and another one attached to one of the upright shafts or pieces of timber above mentioned the rope that elevated and lowered said dirt boxes passed into a windlass that was operated by a steam engine that was stationed near s.aid well for that purpose, and that said engine was operated by an engineer by the name of Scott Sharper; that as fast as the dirt was taken out of said well by the operation of said appliances, it was deposited in a dirt car, that was run immediately over the top of the well to re*583 ceive said dirt, and said dirt was conveyed away from said well in said dirt car, and upon a track built for that purpose, and upon which said car ran; that it was necessary, for the reasonable safety and proper security of the plaintiff herein, who was working in said well, that said square opening immediately over the top of said well be kept free and unimpeded, so that the rope should be, to the extent thereof, free and untrammeled in its operation; that said defendant, by its agents and servants acting under power and authority from the defendant, did, in the doing of said things, carelessly and negligently, and without reasonable care and prudence in the premises, place three heavy planks or boards, loosely and insecurely fastened, and unsuitable and unfitted, and improperly prepared for that purpose, upon the top of said well, upon the cross-beams aforesaid, thereby narrowing said square opening so that the rope could easily come in contact with said heavy planks or boards; that after having been so placed over the top of said well, they were by said defendant, its agents and servants aforesaid, carelessly, negligently altered and changed, and the inside plank was changed by cutting the same with an ax, so that a narrow and insufficient portion thereof only extended onto the frame on either end, and thereby rendering it less secure and more dangerous, hazardous, and perilous; and said defendant, by its agents and servants aforesaid, did negligently and carelessly suffer the said planks or boards to remain unsecured and out of repair, and each and all of said boards or planks so carelessly and negligently placed and altered as aforesaid, and suffered to remain as aforesaid, were -each and all extra hazardous and dangerous to the life and limb of persons working in said well, all of which was well known, at all times, to said defendant and its agents and servants aforesaid; that while the plaintiff herein was engaged in working in said well, and while a box was being elevated out of said well by means of the appliances aforesaid, said rope came in contact with said planks or boards situated and placed as aforesaid, and, without any warning or signal to plaintiff’ by said defendant or any of its servants or agents, and by the force or violence of the contact pulled one of said heavy planks or boards from its place down into the well and upon said plaintiff, which plank crushed, wounded and maimed the hand of said plaintiff, breaking and dislocating the bones thereof; that the placing of the planks or boards hereinbefore mentioned, and the alteration of the same so as*584 render them less secure and more dangerous, and the allowing of the same to remain in the condition they were in at the time of the injury to plaintiff, were unknown to the plaintiff', but was known by the said defendant, its agents and servants as aforesaid; and said defendant, its agents and servants as aforesaid, knew that the position of the plaintiff in said well was extra-dangerous and hazardous to his life and limbs, by reason of said rope coming in contact with said plank, or either of them, and throwing the same upon said plaintiff in said well, and the same could have been known by the said defendant, its agents and servants as aforesaid, by the exercise of reasonable and ordinary care in the premises; that the plaintiff’s work in digging in said well and filling the boxes with dirt as aforesaid was an extra-hazardous and dangerous position, and required great diligence and care on the part of said defendant to guard against injury; that the placing of said planks as aforesaid and the altering of the same as aforesaid, and the allowing the same to be out of repair as aforesaid, and the carelessness and negligence of defendant’s engineer as aforesaid, and his incompetency, caused and produced plaintiff’s injuries as aforesaid.”
To this petition the defendant below filed an answer containing a general denial, and the defense of contributory negligence; and upon the issues so made up the case was tried. The defendant prepared certain special findings of fact in said cause to submit to the jury for them to answer; that among the others, the following occurred:
“How much, if anything, do you allow plaintiff as exemplary or punitive damages?
“How much do you allow plaintiff for compensatory damages?
“ What amount, if any, do you allow plaintiff for medical and surgical care — medical attendance?
“And thereupon, when said defendant was about to submit said questions and the court had approved of their submission, the attorneys for plaintiff and defendant agreed in open court to submit said cause to the jury without argument, upon consideration that said special questions should be withdrawn, which condition was made by plaintiff’s attorney; which agreement was made in open court, and carried into effect by defendant’s withdrawing said questions, and thereupon said cause was submitted without argument to the jury.
*585 “Thereupon the jury retired to consider of their verdict, and that afterward, and on the 23d day of June, 1888, the jury returned into court their verdict, which is in words and figures following, to wit:
“ We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find for the plaintiff, and assess the amount of his damages at $700.”
The material facts are that prior to the 13th day of March, 1888, the plaintiff in error dug a large well at its round-house between Strong City and Cottonwood Falls; and it also started a second one. This second well had been started in this way: A test-well six feet square, and curbed with boards, had been sunk to a depth of 30 feet — that is, a well 30 feet in diameter, having this testrwell in its center, was started by digging down to a depth of from 8 to 10 feet, leaving this test-well in the center. When the large well was sunk to a depth of from 8 to 10 feet, curbing was put around the inside, and then four piles, each 40 feet in length, were driven down so that they formed a square that was 12 feet each way — that is, from each pile to the other there was a distance of 12 feet, measured in any direction, and in the center of this square was the test-well. The tops of these piles, when sunk as far as they were to be sunk, were a little above the level of the ground; and, upon the tops being leveled and squared, a crib or framework of timbers was placed thereon, 12 feet square, except that the two timbers running east and west on each side extended to the ground. This crib was built up by timbers crossing each way on top of the first heavy timbers to a distance in height of some three or four feet; on the top of this crib were placed two upright timbers about 12 feet high, braced on each side to keep them upright, and another timber was placed upon the top of these two upright timbers, making a cross-beam, in the center of which was fastened a pulley. This pulley was directly over the center of the large well. A track was laid from the railroad track on the outside, and of the same gauge as it, north, and upon this crib, so that the same ran from the south to north of the center of the well a few feet.
On the part of the plaintiff below, it was claimed that it was negligence for the foreman to chop into this plank so as
“The jury are instructed that if the plaintiff disregarded any warnings or cautions given to him either by the foreman in charge, or by a co-laborer, and that the disregard of such warning and caution in any way contributed to the injury complained of, that then in such case the plaintiff cannot recover.”
This was refused, and no notice taken of such fact by any instruction given, except that the court did instruct the jury that—
“An employé is bound to obey the orders of the person placed in authority over him, and if he disobeys, and an injury results to him, he cannot recover for such injury.”
There is nothing in the record that any orders had been disobeyed. There is evidence that a caution or warning had been given repeatedly to the men, in the presence and hearing of the defendant in error, about the danger attending an improper location of the dirt bucket. This warning could not be tortured into an order, and the failure of the defendant in error to heed it, into a disobedience. This question was not so presented by the instructions that the jury could comprehend its import. The instructions did not notice that the defendant in error was charged with contributory negligence, and that there was some evidence tending to prove the same. No definition of “contributory negligence” was given or rule stated to guide the jury on the only defense made by the plaintiff in error. A special instruction was requested by
There were other instructions given that are subject to grave criticism, and others offered and refused that ought to have been given, but they are unimportant when compared to this instruction. The jury were told by the trial court, in these words:
“If you believe from the evidence that the negligence of the defendant was of a gross and reckless character, and defendant’s conduct lacking in all elements of caution and regard for the safety of the plaintiff, you are at liberty to award what are termed exemplary or punitive damages; that is, damages which are given, not on account of any special merit in plaintiff’s case justifying the same, but as a warning and lesson to the defendant, to teach it greater respect and care for the rights and safety of others.”
Now, we have searched this record in vain to find the utterance of a single witness, or the recitation of any one particular fact, which could by fair construction or just inference be considered as tending to establish wanton negligence, or gross or reckless conduct upon the part of the servants and employés of the railroad company. There is absolutely no testimony to warrant such an instruction. For this alone, if there were no other reasons, this case must be reversed and a new trial ordered. (K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kas. 671; K. P. Rly Co. v. Cutter, 19 id. 83; City of Parsons v. Lindsay, 26 id. 426; K. P. Rly. Co. v. Peavey, 29 id. 169.)
It is recommended that the judgment be reversed, and the cause remanded, with instructions to grant a new trial.
By the Court: It is so ordered.