81 P. 476 | Kan. | 1905
The opinion of the court was delivered by
The conclusion at which the court has arrived as to the merits of the action makes it unnecessary to consider the cross-petition in error filed by the defendant in error. The smelting company first contends that the plaintiff below abandoned all of his causes of action alleged in his petition except two. The petition contained seven specific allegations of negligence, which may be summarized as follow: (1) That defendant failed to inspect the wall and arch that fell and injured the plaintiff; (2) that it negligently failed to shore up the wall that fell; (3) that the defendant negligently failed to furnish timbers or appliances for shoring up the wall; (4) that' the defendant negligently proceeded with the work of taking down the buck stays without having taken any precaution against the arch and walls falling; (5) that the defendant adopted and pursued a dangerous plan and method in taking down the wall, in that the defendant should have taken down the arch and flue before removing the buck stays; (6) that defendant failed to furnish the plaintiff a safe place to work; (7) a failure to give plaintiff warning of the removal of the buck stays and rods, and the placing of men at work on the flue or boiler, and the fact that such work weakened the walls and arch and caused them to fall. In
As opposed to the claims of negligence, the defendant below asserted that the plaintiff knew as well as did the defendant the dangers to which he was exposed, and by implication agreed to assume the risk of injury; that the defendant was not under obligation to furnish plaintiff a reasonably safe place to work, but only a reasonably safe place considering the hazardous nature of the work itself; that the employer has the right to judge for himself the manner in which he will carry on his business, and a servant having knowledge of the circumstances must judge for himself whether he will continue in the service; that the defendant was under no duty to inspect the structure, because there was nothing to suggest the necessity for an inspection; that the injury occurred as the result of the risk that was apparent to the plaintiff, and that, after .the accident happened, he should not be permitted to Shift the responsibility.
The instructions of the court fairly presented to the jury the theories of both the plaintiff and the defendant, and it seems that the case was submitted to the jury under proper instructions. While there was evidence in support of both theories it was for the jury to determine what they would believe, and they evidently believed the defendant was negligent. The very circumstances of the case are strong evidence in support of the plaintiff’s claim. The fact that the smelting company, after the construction of the structure, found it necessary or advisable to place buck stays for the support of the north wall at a time when the heavy iron flue did not rest upon the arch, but was supported by the roof, and the wall itself was not exposed to the elements and wet by the rain — these facts, of course,
If the plaintiff below knew all the facts, and saw fit to accept employment and to work in a dangerous place, he must be presumed to have accepted the risk, and cannot shift the responsibility for the accident; but if he did not know that the arch was cracked, that the wall was already leaning out slightly from a perpendicular, that the wall was wet, that the ground at the base of the wall was wet, and other facts concerning which there was evidence, and if the smelting company, or its foreman, knew these facts, or in the exercise of ordinary care ought to have have known them, and did not warn the plaintiff of the danger, then the smelting company should be responsible for the injury.
We have examined the various objections to the introduction of testimony and have failed to discover any material error. The judgment of the court below is affirmed.
