87 Kan. 571 | Kan. | 1912
The opinion of the court was delivered by
Frank Henry sued F. G. Palmer and T. B. Gilbert, a partnership engaged, under the name of the Kaw Boiler Works, in the business of1 constructing metal tanks, on account of personal injuries received while in their employ. A demurrer to his evidence ' was sustained and he appeals. The evidence tended to show these facts: A foreman of the firm was engaged, with a number of other wórkmen, including the plaintiff, hired by him, in the erection of a tank, forty-three feet in diameter and twenty-five feet high, constructed of curved sheets of steel five feet wide and eight or ten feet long, weighing four or five hundred pounds. For the purpose of raising the sheets composing the top ring the men, under the direction of the foreman, prepared a hoisting apparatus the principal feature of which was a single pole, which they called a gin pole, composed of two joints of well casing four to six inches in diameter, screwed together at the ends. As the last sheet was being hoisted into place, by means of a block and tackle fastened to the top of the gin pole, the plaintiff" held one end while the other was being swung into position. The gin pole
. The grounds of negligence set out in the petition are: that the casing of which the gin pole was made was not strong enough for the purpose, owing to its being old and rusty; that the gin pole was not strengthened at the place of union by placing a wooden block on the inside; that the gin pole was not guyed in a proper manner so as to prevent its falling against the plaintiff. The allegations are probably broad enough to cover also the failure to provide sufficient support for the gin pole, and the failure to screw the ends far enough together. We think the testimony that the joints of casing were old and the threads, rusty was sufficient under the circumstances of the case to warrant a finding that the company was negligent in not furnishing better material for the construction of a gin pole. In this view the demurrer to the evidence should have been overruled in order that the jury might at least pass upon this matter;' As the question whether the company could be held liable upon any other ground will arise upon a new trial, it is desirable that it should be determined now.
In this jurisdiction the liability of an employer for an injury to one employee caused by the negligence of another depends, not upon their respective rank or the closeness of their association, but upon the character of the duty that has teen neglected. He is liable only in case the duty which has been violated is one which the law imposes upon him, and which he can not delegate to another. (Bridge Co. v. Miller, 71 Kan. 13, 80 Pac. 18; Lunn v. Morris, 81 Kan. 94, 105 Pac. 15.) Since that is the sole test it should be applied in such manner as to carry out the general principles regulating the liability of employer to employee, and be a consistent part of a complete system. The essential reason why an employer is relieved from responsibility for the-negligence of his employees in preparing their own working place, from sound material furnished them, is that they are supposed to be competent to judge of its safety, and have the matter in their own hands. It matters little in what terms the immunity is expressed- — -whether it is said to depend upon assumption of risk, contributory negligence, or fellow service. Where an employee has had no part in the construction of his working place, or of an appliance which he uses, and is not competent and does not assume to be competent to judge -of the safety of either, the' reason of the rule fails and the rule should be held not to-
The judgment is reversed and a new trial ordered.