Missouri, Kansas & Texas Railway Co. v. Puckett, 62 Kan. 770

Missouri, Kansas & Texas Railway Co. v. Puckett

62 Kan. 770 | Kan. | 1901

The opinion of the court was delivered by

Greene, J.:

It is argued by plaintiff in error that defendant in error cannot recover because he did not apprehend any danger to himself by the useof this jack. We think this contention is without merit. The defendant in error testified that he had frequently called the attention of the foreman to the defective condition of this jack and that they both had tried to remedy it; that the foreman had, on several occa*773sions, told Mm he would send it in and have it repaired or get a new one. The defendant in error testified that on one occasion he threw it away, or set it aside, and refused to work with it in its then dangerous condition; that the section foreman insisted upon his using it again, promising that he would immediately thereafter send it in and get a new jack, and it was upon this assurance that he was induced to, use it again. He also testified that he would have quit work sooner than have used this jack again, only for the promise made by the section foreman that he would send it in and have it repaired. He also testified that “when the clutches would slip it would give a fellow a tremendous jerk.” Cotteral, another witness, and fellow workman of defendant in error, testified that when it would slip it would unjoint his neck, if he was not watching. The witness Smith, who worked on the section with defendant in error, testified : “When the jack would slip it would hurt a person and give him a hard jerk; it would let a person down all of a sudden, and would generally hurt the back of my neck.” The evidence also showed that there were several complaints of this jack, not because it would drop the weight of the track, but because when it would slip it would hurt the person operating it.

It is also contended by plaintiff in error that, if the defective jack was dangerous, it was obvious, and known to the plaintiff below as well as to the foreman, McDonald, and that, therefore, the defendant in error was bound to exercise extra care and caution to avoid injury. We think that all that the law requires under such circumstances is that a person use that reasonable care to protect himself against such injury which ordinarily prudent men take of their persons when era*774ployed in a dangerous service of like nature. The plaintiff below testified that when he was hurt he was using this jack as carefully as he could, and there is no evidence in the record to show that he was in any' way negligent in the use of it. The section foreman testified that he was a good man with tools.

It is also claimed by plaintiff in error that the danger arising from this defective jack was so obvious that an ordinarily prudent man would not have used it; that defendant in error cannot recover, and that a promise to repair does not apply to simple appliances. This question has been determined by this court in the case of S. K. Rly. Co. v. Croker, 41 Kan. 747, 21 Pac. 785. In that case Croker was engaged in breaking rock for ballast, using for that purpose a hammer weighing about three and one-half pounds. The handle of this hammer was a green stick, cut from the brush adjoining the track, and was crooked. The defendant in error, Croker, had complained directly to the section foreman about the handle being defective, and the section foreman told him to work with this one as it was, and that he would get him a good handle in a few days. He struck a blow on a limestone rock with the hammer and a small particle of the stone struck him in the eye and destroyed his sight. The court said that the duty of the company was plainly understood to be to furnish reasonably safe tools for doing this kind of work; that this hammer was defective ; that protest was made against its use and a promise given that a new handle would be forthcoming; that this promise was accompanied by an order to go ahead and work with it. The court held: “The railroad company did not exercise that degree of .care required by law, in furnishing proper tools with which to do the work required of the' sec*775tion men, and was guilty of negligence in requiring the use of defective hammers.” This was certainly .a more simple appliance than the lifting-jack used in this case by defendant in error. On the very day that Puckett was hurt he complained to the foreman about this tool, and the foreman told him to go ahead and repair that'joint, and he would send it in for repair.

It is also contended that the evidence did not disclose that plaintiff’s condition is the result of the second injury. This question was submitted upon sufficient evidence and proper instructions by the court to the jury, who passed upon it and decided against the plaintiff in error. It is, therefore, not a question for this court.

The plaintiff in error also complains that the court erred in refusing to give an instruction submitted by it. We have examined the instructions submitted, and refused by the court, and find that the substance of the instructions asked by the defendant below was correctly given by the court to the jury. We think they fairly stated the law of the case.

The judgment of the court below will be affirmed.