48 Kan. 120 | Kan. | 1892
The opinion of the court was delivered by
This was an action brought in the district court of Wyandotte county, on May 2,1887, by James Kelley against W. H. Ryus, to recover $5,000, for personal injuries alleged to have been sustained through the negligence of the superintendent and foreman of the defendant in operating the defendant's planing mill. The case was tried before the court and a jury, and at the close of the trial the court instructed the jury to render, the following verdict, to wit: “We, the jury, find for the defendant;'' and the jury rendered such verdict,
Among the admitted facts are the following: The defendant owned and operated a planing mill in Kansas City, Kas. A. Gr. Millspaugh was his general superintendent, and J. F. Murray was his foreman for the work in the lower story of the planing mill. This lower story contained the planing-machines, and also contained boring- and mortising-machines. The plaintiff was at work at one of the planing-machines. Murray was at work at one of the boring-machines, and the work of the one interfered with that of the other. Murray changed the work at the planing-machine, with the intention that there should be no further interference, but the change did not seem to be successful. While the plaintiff was guiding a board through the planing-machine it struck the piece of timber which Murray had placed in the boring-machine, and the board was so disarranged and displaced that one of the plaintiff’s hands came in contact with the knives of the planing-machine, and one of his fingers was cut off; and this, with the consequent loss, constitutes the injury for which the plaintiff now claims damages.
There were of course three main questions to be tried in the court below: (1) Was Murray a vice-principal for whom the defendant was responsible, or was he only a coemployé with the plaintiff? (2) Did the injury occur through.the negligence of Murray ? (3) Was the plaintiff guilty of contributory negligence? The first question is probably the only one that can fairly be said to be presented to this court, and the only one which we need to consider, though possibly it may be claimed that the second one is also presented to this court; and these questions are embodied in the more general question: Was there any evidence introduced on the trial in the court below fairly tending to prove the affirmative of both the foregoing questions? If this general question should be answered in the affirmative, then the instruction of the court below to the jury to find for the defendant was erroneous; but if it should be answered in the negative, then
Witness Edward S. Preston:
“Q,ues. Who was foreman in that room? [The lower ■story of the planing mill.] Ans. Murray. We all worked under Murray’s orders. Kelley told Murray that he couldn’t run that piece on account of him running the pulley stile. Murray changed Kelley’s rest as far back as he [Murray] •could, and cater-cornered. to clear the pulley stile, but he didn’t quite do it. I was standing there waiting to ask Murray a question. Millspaugh was so busy talking to him that I did not bother him, and when he jerked back and hit Kelley’s ■board, then Kelley run.”
Witness Plenry S. Preston:
“Ques. State what the duties of Murray were in the mill. Ans. He was foreman over the men. We all worked under his orders in the mill.”
Witness James Kelley, the plaintiff:
“Q,ues. Who employed you? Ans. Mr. Murray employed me the last time I worked at the mill there.
“Q,. Who was Mr. Murray? What position did he occupy? A. Well, he was foreman down stairs, down around the machinery.”
“Q,. You stated that was Mr. Ryus’s planing mill, and Mr. Murray employed you in the work? A. Yes, sir.”
“Q,. Who directed you to work upon that machine? A. Mr. Murray.
“Q. How long had Mr. Murray been there as foreman? A. Well, he was there when I went there at this time; he had been there some time before, I do not know just how loDg; been there some time, though.”
“Qii Just tell the jury what occurred between you and this foreman, Murray, when he first came up there and began to work on his machine. A. Well, he came up and went to work on the machine; I think the first piece that I run over, I had hit the piece that he was running through his machine; and I.spoke to him then and asked him if he was going to*123 bore them pulley stiles on there, and he said he was. I told iim then maybe I had better wait until he got through. He says, ‘No, this wont bother you any,’ and he came over and changed the gauge of my machine round in a kind of cater-cornered shape across the table.”
“Q,. Now, what caused your fingers to drop down on the knives? A. Well, by running the piece that I was working on against the piece Mr. Murray had left in his machine sticking out, and the piece I run through ran against his and tipped the piece over and throwed my hands onto the knives.
“Q. If it tipped it over, it tipped it over before you got cut? A. It just knocked — run against it and tipped it out of my hands and throwed it right down onto the table, and my hand fell off, and hit right onto the knives when it went down.”
“Q,. What did Murray do about the mill? A. He did all the laying out of all the work; got it all laid out; made out all the bills of all the stuff that was to be got out.”
“ Q,. Murray did nothing about signing checks or anything of that kind? A. No, sir; he kept the time was all. He turned the time over every night to Mr. Millspaugh.”
“Q,. He stated what you were to work on? A. Yes, sir; he always gave me my work I did there.”
Other testimony might be given of the same general character, but this is deemed to be sufficient. Under all the testimony in the case, for and against the plaintiff, we think the instruction of the court below was erroneous. It is perhaps unnecessary to cite authorities, and yet with respect to the duties of employers towards employés, and with respect to who are co-employés, see the case of St. L. & S. F. Rly. Co. v. Weaver, 35 Kas. 412, 425-430, and cases there cited; and as to the province of the court and the jury with respect to each' other, see the following cases: K. C. Ft. S. & G. Rld. Co. v. Foster, 39 Kas. 329, 330, et seq., and cases there cited; Usher v. Hiatt, 18 id. 196, 202-205; Heithecker v. Fitzhugh, 41 id. 50. It is the duty of an employer in all cases to furnish his employés
The judgment of the court below will be reversed, and the cause remanded for a new trial.