268 P. 86 | Kan. | 1928
The opinion of the court was delivered by
This is a common-law action by an employee against his employer for damages for personal injuries alleged to have been caused by the negligence of defendant in failing to furnish plaintiff
Defendant is engaged in the business of buying and selling petroleum products, and in the conduct of such business maintains a number of filling stations, one of which is situated at Eighteenth street and Argentine boulevard in Kansas City. Plaintiff was in the employ of defendant in charge of this filling station. His work required him to handle and sell gasoline, oils and other petroleum products, and to grease and oil cars, and do all other work connected with the operation of the service station. He alleged that on the afternoon of May 3, 1926, while he was engaged in carrying ten quarts of oil from the station building to an oil table or rack which stands at the south side of the canopy over the driveway, being a part of the station, an automobile, at a very rapid rate of speed, ran through the driveway, and plaintiff, in an attempt to prevent being run into by the automobile, stepped or jumped out of the way, and in so doing, “because of the slippery condition of the loose gravel on the floor of the driveway of said filling station, which gravel had large ruts or holes in it and had been in a dangerous condition for persons attempting to walk thereon for a long time prior to said date, and which condition was and for a long time had been known to the defendant and which the defendant had promised to repair, and which promise plaintiff had relied on, plaintiff was caused to slip and fall, causing him to be thrown against the oil rack," with resulting injury. It was further alleged that defendant was negligent in failing to furnish plaintiff a safe place to work, and in failing to resurface the driveway, after promising so to do, and in permitting the driveway to remain in a defective and dangerous condition, as previously set forth.
In the answer, defendant denied the allegations of negligence in the petition and plead contributory negligence and assumption of risk.
The filling station was situated on a corner of the lot diagonal with the street, with two roadways, one from each street. The roadway nearest to the building was covered with a canopy. The roadways had been constructed with gravel, or chat, and cars passing through would carry a part of it out into the street. There was loose gravel on top of the roadway, and the cars going through had cut
With reference to the manner in which the injury was caused, the jury, in answer to special questions, found that plaintiff was in full charge of the filling station; that it was defendant’s duty to keep the driveway free from ruts, depressions, or other defects; that the drive
“Q. Was plaintiff caused to fall in getting out of the way of the automobile by catching his foot in a rut? A. No.
“Q. Was plaintiff caused to fall in getting out of the way of the automobile by his foot slipping on oil in the driveway? A. Yes.”
Defendant’s demurrer to plaintiff’s evidence, its motion for a directed verdict, and its motion for judgment on the answers to the special questions, were overruled.
Appellant contends there was no negligence on its part to justify the verdict, and that plaintiff, as a matter of law, assumed the risk of thé condition of the driveway which the jury found caused his injury. These contentions must be sustained.
It is difficult to see that this driveway was an unsafe place to work. Plaintiff’s complaint to Tierney concerned the appearance of the driveway. Some of the gravel or chat had. been dragged out on the street by automobiles which had passed'over the driveway, and at places in the driveway there were shallow ruts in the loose gravel. Plaintiff thought this prevented the premises from having a neat appearance and would be detrimental to business; that autoists would not be so likely to stop at an .ill-kept filling station. Plaintiff made no complaint to Tierney, or to anyone, of the driveway as being unsafe, or as being an unsafe place to work. Obviously he did not so regard it. (See Railroad Co. v. Mealman, 78 Kan. 496, 97 Pac. 381, and allied cases.) But we need not dwell on the question whether the loose gravel or ruts in it caused plaintiff’s injury, for the jury has eliminated that question from the case by finding that plaintiff did not catch his foot in a rut, and that he was “caused to fall ... by his foot slipping on oil in the driveway.” Considering the evidence before it, the jury found the cause of plaintiff’s fall to be oil in the driveway, not loose gravel or ruts in it. Neither party to this action took exceptions to this finding; it was approved by the trial court, and it must stand as binding on this court. So the question before us is, Was the oil shown to be on the driveway negligence of defendant which authorized or justified the verdict? Clearly not. Such oil as there was in the drive
It seems clear, also, that such oil as was in the driveway was the usual, natural and perhaps necessary condition of a driveway and filling station. The fact that oil was likely to be in the driveway from the dripping of automobiles was a matter well known to plaintiff, as well as to defendant, and any danger to plaintiff’s safety arising therefrom was an ordinary, natural and necessary incident to the conduct of the business — any one in charge of the filling station would have been subject to the same condition — and hence the risk of it was assumed by plaintiff from the fact of his employment. In 39 C. J. 705, the rule is thus stated:
“In the absence of an agreement to the contrary, a servant by his contract of employment, either expressly or impliedly from the circumstances of the employment, agrees to assume all the risks ordinarily or obviously incident to the discharge of his duties in the particular employment, and accordingly, under the well-settled rule that a master is not liable to his servant for injuries that are attributable to risks or dangers assumed by the servant, for injuries sustained by an employee from such risks the employer is not liable. It will be presumed that the contract was made with reference to such risks. The servant’s assumption of such risks is in the nature of things a part of his employment, and the employer violates no legal duty to the employee in failing to protect him from dangers which cannot be escaped by anyone doing such work.”
This text is supported by many cases from the federal courts and from state courts of last resort, including decisions from our own court, and states the general well-recognized rule.
Appellee cites Phillips v. Commercial Nat’l Bank, 119 Kan. 339, 239 Pac. 984, and allied cases,'holding in effect that before a servant can be, said to have assumed the risk incident to conditions of the place at which he works it must appear that he appreciated the
From what has been said it is clear that defendant’s motion for judgment on the special findings, notwithstanding the general verdict, should have been sustained.
The judgment of the court below will be reversed, with directions to enter judgment for defendant.