63 P. 294 | Kan. Ct. App. | 1901
At the time of the injury, W. J. Smith, defendant in error, was in the employ of the railroad company as a section-hand, and one George Meadows was section foreman. On the date of the injury the foreman and defendant in error were the only men in the service on the section; they took the hand-car from the tool-house, placed it on the track and ran it south about a quarter of a mile, until the wind prevented their further progress. They then got off the car for the purpose of pushing it forward ; as the defendant in error attempted to lift his shovel from the car to assist in pushing it forward, the foreman gave the car a shove and in some way the loaded gun that had been placed on the car exploded, injuring the plaintiff.
The defendant in error for some months previous had been in the employ of the railroad company as a section-hand; the section foreman and Smith were required to go over the track upon a hand-car once a day to see that the track was in proper condition. The hand-car was kept in the tool-house at night. The section men would go to the tool-house every morning, get the car, and go over the section. On the car were carried the tools, consisting of shovels, picks, .crow-bars, bolts, etc., with which the men repaired and kept in proper condition the track. The evidence showed that the hand-car, the track and all of the tools used by the section men were at all times in question in first-class condition; that each of them was at the time of the accident managed, operated and controlled in a careful and proper manner, and in the same manner they had been handled, operated and controlled during all of the time that Smith had
The special findings returned by the jury were as follows :
”Q,ues. 1. Did the plaintiff receive the injury of which he complains by being shot in the leg with the gun referred to in the evidence while it was on the hand-car? Ans. Yes.
“Q,. 2. For what purpose was the said gun at the times shown by the evidence carried on the hand-car? A. For shooting game.
“Q. 3. What employees used said gun in shooting rabbits or other game while it was being carried on the hand-car — give names of all such employees? A. Meadows and Smith.”
“Q. 15. Did any officer, agent or employee of the defendant other than the section foreman, Meadows, and the other section man who worked with him, know at any time before plaintiff was injured that the gun was being- carried or was on the car ? A. No evidence to show.”
“Q,. 17. Did the duty or work of Meadows and the other section men, or either of them, to or for the defendant, require that the gun should be carried on the hand-car? A. No.”
“Q,. 21. Was the gun furnished to or used by Meadows and the other section men or either of them to perform or in performing any act or duty for the defendant? A. No.”
The railroad company filed its motion for judgment in its favor upon the special findings; this motion was overruled by the court and judgment rendered' upon the verdict, to which action and ruling of the court the railroad company duly excepted.
The defendant in error, in his petition, alleged in express terms “that the said gun was shot off and discharged in some way unknown to the plaintiff.” The defendant in error testified upon the trial “that he did not know what caused the gun to go off.” The evidence and findings show, without conflict, that the gun was not furnished to the section men, or either of them, in working or performing any act or duty for the railroad company ; that it was not in the line or within the scope of the foreman’s duty to furnish a gun, to carry or have one upon the hand-car, and that he did not, nor did either of the section men, have to carry it to do or perform any act or duty for the railroad company. The gun was carried upon the car for the pleasure of the section men, to enable them to shoot rabbits and other game. These facts were fully known to Smith, the defendant in error, or should have been known to him. He participated in handling, carrying and using the gun and in shooting game with it.
Upon the undisputed evidence and findings of the jury, the defendant in error cannot recover for the damages sustained. An employer is not liable for the act of his employee if such act was not authorized by the former or done by the latter in the discharge of some duty. Smith testified that the gun was carried on several different occasions prior to the date of his injury and on the day preceding his injury. The jury expressly found that the gun was the private property of Meadows, and was carried on the handcar for shooting game; that it was used by Meadows,
Upon the findings of fact, the court should have rendered judgment for plaintiff in error. The judgment will be reversed, and the cause remanded with direction that the trial court render judgment upon the special findings for plaintiff in error and against the defendant in error.
