19 Kan. 267 | Kan. | 1877
The opinion of the court was delivered by
This was an action to recover damages for personal injuries sustained by the plaintiff below through the fall of a derrick upon him, while in the employ of plaintiff in error, as a laborer, in building a culvert. The jury found in substance, that there was no negligence in originally providing the derrick, but that it became defective while used in building the Culvert, and that Owens, foreman of the job, continued to use it after he knew of its defective character.
The plaintiff in error also complains of the refusal of the court below to give the 20th and 24th instructions asked for by it. Said instructions read as follows:
“20.-In weighing the testimony offered on behalf of the parties, the jury will- consider that the plaintiff is deeply interested in the result of the suit, and will view his testimony with proportionate suspicion.”
“24.-Parties to suits, and their immediate relatives, are by the law held to be more or less biased against the adverse party; and in this case the credibility of the plaintiff, his father, brother, and sister, are directly in issue — the plaintiff as interested, and the others as biased witnesses against the defendant.”
The foregoing facts are unquestioned. They were established by proof and by admissions beyond a reasonable doubt. And therefore, if the plaintiff is entitled to recover upon these facts, then all the errors committed by the court below, or at least all that were sufficiently saved by proper exceptions, must now be considered as wholly immaterial, and the plaintiff’s judgment must be affirmed. Whether the plaintiff is entitled to recover upon these facts, depends as we think, upon whether the railroad company is responsible for Owens’ negligence or not. That Owens was negligent in using said derrick after he knew that it had become insufficient and unsafe, we suppose no one will question; but whether this negligence was the negligence of the railroad company, may be questioned, and is questioned. We think it was. Owens was the only representative that the railroad company had upon that work. He was really the superintendent of the railroad company for that particular work. As to the laborers on the work he was the railroad company itself. If he had been merely a foreman working under a common employer, a common master, a common principal, along with the other employés, then we suppose under the authorities he would have been only a fellow-servant with the others and the company would not have been responsible for his negligence toward the others. But he was not merely á foreman working with the others under a common employer. As to the others he was the employer himself. He was their master, their prin
The court below did not err in admitting evidence as to what Owens said, or what was said to him prior to said accident, concerning the insufficiency of said derrick. Such evidence was proper for the purpose of showing that Owens knew that the derrick was unsafe.
The judgment of the court below will be affirmed.