83 P. 986 | Kan. | 1905
The opinion of the court was delivered by
Chester Daniels, a boy not quite eighteen years of age, was injured while in the employ of' the Creamery Package Manufacturing Company. He brought an action against the company, alleging that his injury was due to its negligence, and recovered a judgment for $600, from which the defendant prosecutes error.
The plaintiff worked near a small circular saw, his work requiring him to pass back and forth near it. Upon one occasion, while carrying some boards by it in the course of his employment, the floor being strewn with sawdust, he stepped upon a “cull-head,”
In response to a special question, however, asking the jury to state fully in what the negligence of the defendant consisted, the answer was returned: “For not removing saw from mandrel or covering it up when not in use.” This is in effect a finding that there was no negligence on the part of the company in respect to the lighting of the room or the obstruction of the passage, and that the company was not derelict toward the plaintiff in any matter other than that specifically named. The jury also found specially that the plaintiff had worked more than a week in this room, during which time he frequently saw the machinery in operation; that he knew of the practice of allowing the saw to run when not in actual use; that he knew and understood the result of getting his fingers against the saw; that he knew the saw was running at the time he was walking toward it and before the time he was hurt.
The defendant contends that these findings compel a judgment against the plaintiff for the reason that they show an assumption on his part of the risk occasioned by the negligence of which he complains. The contention must be sustained. The saw while in motion presented a peril that was obvious to the meanest intelligence. The mere fact that the plaintiff was a minor does not affect the matter. (Bess v. Railway Co., 62 Kan. 299, 62 Pac. 996.) A boy practically eighteen years of age was as capable as an older per
That the employee ordinarily assumes the open and obvious danger incidental to the operation of unguarded machinery is well settled. (See 20 A. & E. Encycl. of L. 117.) The only distinction in this regard between the present case and those there cited must be found in the fact that here the machinery was being operated unnecessarily — at a time when it might as well have been stopped or guarded. But this consideration goes only to the matter of the negligence of the master, and does not affect the attitude of the servant. It is important only because but for it there would be no ground of liability whatever. In most of the cases where a recovery is defeated upon the ground of an assumption of risk by the employee there is some form of negligence shown by the employer that would establish a liability except for the principle of assumption of risk; otherwise there would have been no occasion for invoking that principle.
The findings exculpate the defendant from any negligence except in permitting the saw to run uncovered when not in use. The only consideration that could
The judgment is reversed, with direction to enter judgment for the defendant.