47 Kan. 36 | Kan. | 1891
Opinion by
The plaintiffs in error were the two-thirds owners of a horse-power threshing machine, the other third being owned by the father of one of them. When they went to a farmer’s for the purpose of threshing his wheat with their machine, they furnished two feeders, one man to drive the horse-power, and one man to measure the grain, it being the duty of the farmer for whom they were threshing to furnish pitchers, and the other necessary help. On the 16th day of September, 1886, the plaintiffs in error were en
“1. Did not the plaintiff know, at and before the time he attempted to oil the cylinder, that the shield was off the bevel pinion? A. No.
“ 2. Did not the plaintiff know that it was dangerous, if it was dangerous, to attempt to oil the cylinder when the shield was off? A. No.
“3. Could not the plaintiff, in the exercise of ordinary prudence and care, have known that the shield was off? A. No.
“4. Would not the plaintiff have known that the shield was off if he had been ordinarily attentive to what he saw about the machine, and what he heard said by the defendants or others ? A. Plaintiff did not know it was off.
“ 5. How much damage, if any, do you allow on account of the physical and mental suffering of the plaintiff? A. $100.
“6. How much damage, if any, do you allow on account of the loss of plaintiff’s hand? A. $997.
“7. How much damage, if any, do you allow on account of plaintiff’s expenditures for medicine and surgical services? A. $130.
“ 8. What sum of money, if any, do you allow as exemplary damages? A. None.”
It seems to be an established fact in this case that the operation of the machine with the uncovered wheel was imminently dangerous, and this is equivalent to saying that the owners of the machine were guilty of gross negligence in its operation. The great bodily harm of some one working about the machine without the knowledge that the wheel was uncovered was the natural and almost inevitable consequence of such gross negligence. The uncovered condition of the wheel imposed upon its owners the exercise of the highest degree of caution. This increase of duty arose out of the nature of the business and the danger to others incident to the operation of the machine. The duty of exercising great caution by the owners of the machine did not arise out of the contract with Pampella to do his threshing, but grew out of the wrong being done by the use of an uncovered wheel, known by them to be imminently dangerous. The owner of a horse and cart who leaves them un
The owner of a loaded gun who puts it into the hands of a child, by whose indiscretion it is discharged, is liable for damages occasioned by the discharge. (Dixon v. Bell, 5 Maule & S. 198.) The general rule is, that damages for which a party is liable are those, and those only, which are the natural and necessary consequences of his acts. (Kellogg v. Chicago Rld. Co., 26 Wis. 267; Ryan v. N. Y. C. Rld. Co., 35 N. Y. 211.) There is this marked distinction between an act of negligence imminently dangerous and one that is not so: the guilty party being liable in the former case to the party injured, whether there was any relation of contract between them or not, but not so in the latter case. (Colegrove v. Harlem Rld. Co., 6 Duer, 410; Burk v. DeCastro, 11 Hun, 357.) Where contractors entered into a contract to put a cornice on a mill, the mill-owners to furnish the necessary scaffolding, and the scaffolding furnished, being defective, fell and killed an employé of the contractors, the mill-owners were held liable because the injury was the natural consequence of their negligence in constructing the scaffolds. (Coughtry v. Woolen Co., 56 N. Y. 128; Coole v. Dock Co., 1 Hilt. 437; Smith v. N. Y. C. Rld. Co., 19 N. Y. 130.) So, in this case, the injury to the defendant in error was the natural consequence of the gross negligence of the owners of the threshing machine in leaving the wheel with its imminently dangerous cogs uncovered. That it was dangerous to human life and limb, is unquestioned. That the Mastins knew it was, is conclusively established. Despite the warnings of friends and neighbors, they persisted in its use in this dangerous condition. The natural result of this gross negligence was the serious injury of the defendant in error. Their answer to his demand for damages is, that he was not their servant. This answer, addressed to a man who was there in the regular course of employment to aid the accomplishment of the very work for which the owners of the machine had brought it to the farm of Pampella, is not a sufficient
We recommend that the judgment be affirmed.
By the Court: It is so ordered.