81 Kan. 379 | Kan. | 1909
Lead Opinion
The opinion of the court was delivered by
It is stated by counsel that the demurrer was sustained upon the ground that the danger from the leaky hose was one of the risks assumed by the plaintiff in continuing in the service after he had acquired knowledge of the defect. If this were the only réason for the ruling it could not be sustained. As we view the evidence the complaints made concerning the defective hose and the promise given to replace it presented questions of fact concerning the assumption of risk proper for the findings of a jury. (S. K. Rly. Co. v. Croker, 41 Kan. 747; Andrecsik v. New Jersey Tube Co., 73 N. J. L. 664; Hough v. Railway Co., 100 U. S. 213.)
The vital question is whether, in requiring the use of
In the absence of wanton or intentional wrongdoing an employer who furnishes defective instrumentalities is liable only where danger to the employee would reasonably be apprehended from their use. If persons of ordinary caution and prudence would not, in the light of the attendant circumstances, anticipate danger from the use of a defective appliance, and' danger is not a natural and probable consequence of such use, liability to an employee for furnishing such an appliance does not arise. On the other hand, it is held that negligence is a ground of action for an injury where it appears that “the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” (Schwarzschild v. Weeks, 72 Kan. 190, syllabus.) It is also held, however, that it is not necessary that the specific injury should have been foreseen; but only an injury of some character. (Railway Co. v. Parry, 67 Kan. 515.) These general principles are supported by other decisions of this court, and the courts of other states, and are stated by text-writers. (Cleghorn v. Thompson, 62 Kan. 727; Railway Co. v. Columbia, 65 Kan. 390; Rodgers v. Railway Co., 75 Kan. 222; Leonard v. Collins, 70 N. Y. 90; McCallum v. McCallum, 58 Minn. 288; Williams v. Railroad Company, 119 N. C. 746; 1 Labatt, Mas. & Ser. § 142; I Thomp. Com. L. of Neg. §§ 57-59; Bishop, Non-Cont. Law, § 691.)
The hose was used to conduct water from the tank to the injector to supply the boiler. If through leakage it should become inadequate for this purpose, an insufficient supply might result and the natural and probable consequences of such insufficiency would be foreseen; but it does not seem reasonable to the court that the formation of ice upon the steps from the spray borne by the wind from the leak was a consequence which, in
The judgment is affirmed.
Dissenting Opinion
(dissenting) : I am constrained to dissent from the conclusion of the court. The syllabus embodies correct principles of law, but in my opinion the question whether the defendant exercised reasonable care and caution in requiring the use of the leaky hose was one of fact for the jury upon the evidence. The care required must be considered in view of the probable perils of the service, and the condition of the appliance in connection with its use and the place of . duty of the enginemen. They were in hazardous' service, and reasonable prudence required the exercise of corresponding care in furnishing them with appliances. Dangers from a defective hose must obviously depend
In Mason & O. R. Co. v. Yockey, 43 C. C. A. 228, the court of appeals passed upon this question upon a similar state of facts. It appeared in that case that a valve stem which, when turned by a wheel at the upper end, opened a valve below to let water pass out of the tank was out of place, and that a wooden plug had been substituted. This permitted the water to splash, producing spray which was carried by the wind upon the apron connecting the engine and tender, creating thereon an icy covering, upon which the fireman fell, and from thence fell out of the cab and was severely injured. The fireman alleged that the company was negligent in furnishing this defective appliance. The circuit court submitted the question of the negligence of the company to the jury, and the correctness of this ruling was presented for review. The court of appeals, Day, J., said:
“We can not say that the testimony made a case so palpably for the plaintiff in error that it should be resolved in its favor as a matter of law. Questions of this character must be decided upon the facts of each particular case. The company might have known that*385 it was dangerous in the winter to permit water to escape on the apron, where the employee was constantly obliged to step, and particularly where the track was rough, as it is shown to be in the present case.” (Page 232.)
The principles upon- which the perplexing boundary between the duties of the judge and jury should be determined have been frequently stated by this court and need not be repeated here. Without quoting further from the opinion just cited, it seems to me fairly to illustrate and apply these principles. If this be true, the district court in the case at bar trespassed upon the functions of the jury: (Doyle v. The Chicago, St. P. & K. C. Ry. Co., 77 Iowa, 607; Oil City Gas Co. v. Robinson, 99 Pa. St. 1.)
A further review of the multitude of cases wherein the courts have considered this subject is not thought to be necessary in this dissent.