The opinion of the court was delivered by
This is an action brought by Eugene Miller and Ida Miller, father and mother of Robert Miller, against Armour & Company, Armour Car Lines, Luther L. Lucky, and Garrett E. Groomer, for negligently causing the death of Robert Miller. Judgment was rendered in favor of the plaintiffs against Armour & Company and Armour Car Lines, for $5000. Defendant Lucky interposed a demurrer to the evidence as to him, which demurrer was sustained. The 'jury returned a verdict in favor of defendant Groomer. Armour & Company and Armour Car Lines appeal.
The petition, among other things, alleges that the defendants, Armour & Company and Armour Car Lines, maintained and operated a car repair shop, where large numbers of men were employed in repairing and rebuilding cars; that in the shop were a number of railroad tracks running parallel with each other; that defendant Luther L. Lucky was the foreman or superintendent of the shop; that in the shop was a forge, permanently placed, used for the purpose of heating rivets for building and repairing steel bottoms, floors, and supports of cars; that these defendants “negligently and in disregard of their said duty failed to place over and above said forge and the space about the same where an employee was obliged to stand when working on and about said forge, a canopy, cover, screen or other means of protection from being struck and injured by tools or other objects falling from the roofs of the cars while being repaired on sa-id tracks; . . . that at said time Armour & Company, Armour Car Lines and Luther L. Lucky had placed on the top or roof of said car the defendant Garrett E. Groomer, with directions to remove and repair certain tin and
The facts to support plaintiffs’ claim, which the evidence tends to prove, were as follows: Within the. grounds, and a part of the plant of Armour & Company, in Kansas City, Kan., were shops for repairing railroad cars, occupying grounds about 128 feet wide by 280 feet long. In these shops were a number of railroad tracks running parallel with each other. The roofs of the buildings were supported by a number of posts, and throughout was a system of pipes, conveying compressed air used for mechanical purposes in repairing cars. Running down one of these posts to within about a foot or 18 inches of the floor, between tracks known as 14 and 15, was an air line pipe. From this point the pipe ran about at right angles from the post, through an elbow, a distance of about three feet, where it was attached to a forge used for heating rivets. This attachment was made by a metal piece called a union. This forge, when so attached, was located half way between tracks 14 and 15, and was about 16 or 20 inches square, and about 24 or 30 inches high. It was often detached and moved to other parts of the shop, where it was used for the same purpose. These tracks were about 14 feet apart. Track 15 was used for building and repairing steel underframes for cars. These underframes were made by riveting together pieces of steel. Rivets were heated in this forge, taken from the forge by the rivet heater to the underframe, placed in the holes, and by the other workmen riveted with an air
Was there negligence on the part of defendants Armour & Company and Armour Car Lines in not putting a canopy or covering over this forge to protect those working there from falling objects?
The boards, metal, nails, bolts, and other material of which the roof or sides of a car might be composed, dropped to the floor by the workman on the car, were not dangerous, nor likely to cause injury to any one who might be standing or working at or near the car, unless carelessly and negligently dropped. Any of this. material thrown around over the shop by the. workmen might be expected to cause injury, but it was not to be anticipated that these workmen would do anything but drop the material by the side of the car.
The entire situation did not indicate any danger, except such as was necessarily incident to the character of the work being carried on. Danger is always present. Accidents are liable to happen anywhere. Some' accident, unforeseen, unanticipated, is liable to happen, by which one may be injured at any time. In factories where large numbers of men are employed, injuries will occur. The employer must exercise reasonable care to prevent those injuries which may be anticipated because of the character of the work in which his employees are engaged. Where an employer has exercised reasonable cafe in providing for his employees safe places in which to work, and safe instruments for them to work with, he has discharged his duty. When he has done this, and injury by accident occurs, he is not liable therefor.
What was the proximate cause of the death of Robert Miller? Was it the absence of a canopy or other pro-'.
It is argued that Miller would not have been inj ured if there had been a protection around him. That is true. Neither would he have been injured if the car had not been there. Neither would he have been injured if Groomer had aimed his bar properly. Neither would he have been injured if Groomer had held the bar. Neither would he have been injured if the bar had been directed at any other angle. Neither would he have been injured if he had not been at the forge where he was. The absence of a canopy produced a condition which made it possible for the accident to occur. This condition was not the cause of the injury. That was caused by the bar, driven by Groomer, slipping from his hands. (Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488; Eberhardt v. Telephone Co., 91 Kan. 763, 767, 139 Pac. 416.) Was it negligence to produce this condition? What reason would have led to the conclusion that the bar propelled by Groomer would miss its mark and escape his hold, as it did, and in its course strike Robert Miller and cause his death? What foresight would have guessed at such result? What prudence would have avoided it? Certainly none, except such as to have restrained Groomer from the use of the bar. We may not say, however, that this extreme of caution i$ required by law. Such a rule would paralyze human effort and. action on all lines. All industrial operations would stop. Employers would become insurers of the safety and lives of their employees. The law does not and can not go to this extent. To support this,' see the reasoning in Cleghorn v. Thompson, 62 Kan. 727, 733, 64 Pac. 605.
Under the facts established by .the evidence, giving them the most favorable interpretation in favor of the plaintiffs, we are of the opinion that Robert Miller met his death by accident, for which no one is liable. We are therefore of the opinion that the defendants’ demurrer to the evidence should have been sustained, and judgment should have been rendered in favor of the defendants. The judgment of the district court is reversed, and this cause is remanded, with instructions to sustain the demurrer to the plaintiffs’ evidence, and enter judgment in favor of defendants Armour & Company and Armour Car Lines.