8 P.2d 368 | Kan. | 1932
The opinion of the court was delivered by
Ernest Fritchman brought this action against his employer, the Chitwood Battery Company and L. L. Chitwood, to recover damages for an injury sustained in a factory of the defendant. The action was founded on the alleged negligence of defendants in failing to furnish plaintiff a safe place to work, failing to warn him of certain dangers incident to the work of which plaintiff had no knowledge, or to otherwise protect him from dangers which caused the injury for which damages were sought. There was a recovery in favor of the plaintiff in the amount of $2,000, and the defendants are here complaining of the result and assigning errors occurring at the trial.
Plaintiff, a boy about seventeen years of age, was employed by the defendant, who was engaged in the business of making storage batteries. Plaintiff first served in a factory of defendant at Wellington, where he worked for about six months, and was then transferred to a factory of defendant in Wichita. A great part of his work was in making new batteries out of parts of old discarded ones, which defendant purchased in large numbers from junk dealers. The processes were to pull the boxes or covering away from the' lead plates of the old batteries, place the plates in an oven to which heat was applied in order to expel, the various acids and prepare the plates for grinding. The dry plates were then put into a large grinder, operated by an electric motor at great speed, thus beating out the oxide and separating the lead from the other materials. This process raised clouds of lead and oxide dust, which settled on the floor, ceiling, walls, tools and equipment. This- dust was inhaled and also covered the hands and arms of the workmen. The lead dust was very poisonous in its nature, and it is claimed that plaintiff had no knowledge of its poisonous character. The lead obtained by the process was then placed in a large vat and heated into a molten mass, from which clouds of gas and fumes arose, and there being no proper flues or ventilation for their escape, these were necessarily
Was plaintiff furnished a safe place to work, and was it the duty of defendant to inform and warn plaintiff of the poison and dangers incident to the work — dangers which plaintiff did not understand or appreciate — or were they such dangers as he should have known and appreciated? The evidence of plaintiff is abundant to show that the factory was an unsafe place to work and that the dust, fumes and gas caused the lead poisoning which disabled plaintiff and sent him to the hospital.' It fully appears, too, that no warning of the danger was given by defendant to plaintiff of the danger of poison, if such warning was the duty of the defendant.
It is contended by defendant that the dust, gas and fumes were open and obvious to any person, even one of tender years and little experience; that plaintiff knew of the presence of these elements as well as his employer did; that he was old enough and experienced enough to understand the dangers, as he had stated that the fumes made his eyes smart and that he had a cough. It is insisted that under the circumstances and the evidence the court should have de
“Before it can be said that an employee has assumed the risks of an employment, it must be shown that he knew, or had reasonable opportunity of knowing, what those risks were; that is, he must not only know or have reasonable opportunity of knowing the dangerous conditions, but he must know or have reasonable opportunity of knowing the danger growing out of those conditions.” (Syl. ¶ 3.)
In that connection the court stated in effect that knowledge and appreciation of the danger depended upon age, capacity and existing condition, and that whether the employee assumed the risk was a question of fact for the jury, like that of the employer’s negligence, and in determining it the jury should take into consideration all of the circumstances and surroundings. (See, also, Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253; Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105; Wagner Electric Corp. v. Snowden, 38 F. 2d 599, 601.)
In the case of Hook v. Railway Company, 116 Kan. 556, 227 Pac. 531, the pertinent rule was stated in these words:
“In order for the defense of assumed risk to be established, it was not enough that the plaintiff knew of the physical facts as they existed, he must have known and appreciated the danger.” (p. 559.)
See, also, Whetstine v. Atchison, T. & S. F. Rly. Co., 134 Kan. 509, 7 P. 2d 501. Whether plaintiff knew and appreciated the danger was at least a question of fact for the jury, and it has found that he did not have such knowledge and appreciation upon sufficient evidence. The finding of the jury on the subject is controlling.
Another complaint is that a request made by defendants for the appointment of a medical commission to examine the plaintiff was denied. The application was not made until the jury had been impaneled and the opening statements of counsel had been made. In the midst of a trial the defendant was asking for a commission of medical experts to examine the plaintiff to ascertain whether plaintiff had been suffering from lead poisoning about two years before, and from which he had recovered. The plaintiff had never refused to submit to an examination while he was suffering from the effects of the poison, nor at any other time. The opening statements which had been made revealed that plaintiff had recovered from the poison. The court said that in view of the recovery he did not think such an examination at this time would be of value, and refused to make the appointment. A court has some discretion in respect to such an appointment, and under the circumstances stated the refusal of the application cannot be regarded as an abuse of discretion or as having resulted in prejudice to the defendant. (Landis v. Street Railways, 110 Kan. 205, 203 Pac. 1109.)
There is no cause to complain that the special findings are not responsive to the questions asked or to the issues in the case.
There was no error in denying defendant’s motion for judgment
Finding no material error in the record, the judgment is affirmed.