4 Kan. App. 219 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
The plaintiff in error sets out and assigns 10 separate grounds of error in its petition, but in its brief waives all the errors assigned except two, and relies upon the following, to which it calls the attention of this court: ’ *
“1. That the court erred in not sustaining the demurrer interposed by the plaintiff in error to the evidence of the defendant in error at the close thereof, upon the ground and for the reason that the evidence wholly fails to disclose any eause of action or ground of relief in favor of the plaintiff below, and that the court erred in refusing to instruct the jury at the close of all the testimony to find Tor the defendant below, for the same reason, and that the court erred in refusing to grant the defendant below a new trial.
“2. The court erred in permitting improper testimony to be given'to the jury, over the objection of the defendant below.” „
The first error relied upon involves two distinct propositions : (1) That the gourt erred in overruling the demurrer of defendant below to the evidence ; (2) that the court erred in refusing to instruct the jury at the close of all of the evidence to return a verdict for the defendant below. Plaintiff in error in its brief says: “Hence, we conclude that the only question in
The evidence was conflicting as to the condition of the liftihg-jack, and as to whether the defective condition of the jack was the cause of the injury to the
W. L. Hammack testified that he was employed in the shops at the same time that Young was, and was working there at the time of the injury. Pie was a carpenter ; had tfsed the lifting-jack ; had discovered that it was defective and that it was unsafe unless great care was exercised in tising it; that it slipped twice with him before the time Young was hurt; that the jack would not perform ¿is it should unless one was very careful in using it; that he would have to notice very particularly that the catch slipped into the proper place; that he took the jack apart and made an examination of it and found that the cogs in the brass catch were worn; that the worn condition of the cogs had such effect that the jack would not hold, and described the condition of the jack at length and why it would slip; that it was dangerous, and that the defective condition could not be .discovered without taking the jack apart and examining it.
“ This pin, in drawing up, as I just said, on these cogs a little, you press down that way ; sometimes it would not do it at all; it would not do it all the time ; it would slip off; it done that way a couple of times ; of course when it happened I took it out and looked to see what was the matter with it, and what I discovered was the edge of these cogs had worn to some extent.
“ Ques. State whether or not you could ascertain that without an inspection and examination. A. No, sir, I could not.”
Peter Reinhart testified that he was an employee in the Missouri, Kansas & Texas shops at Parsons, Kan., at the same time plaintiff below worked there ; that he was a carpenter and.worked in the same shop with Young ; that he had used the lifting-jack ; had examined it before the injury to Young, and found that it was worn so much that it slipped' cogs; that it frequently slipped with him ; that he had to be very cautious in using it; that Jack Shook was foreman and manager of that department; that he had a conversation with Jack Shook on the same morning Young was hurt about the defective condition of the jack; that the conversation was about two hours before Young was hurt.
Other witnesses testified about the defective condition of the jack, and the jack was in evidence before the jury and was examined by witnesses in their presence, and the manner of operating it was shown. . The jury saw and examined it in court, and had an opportunity to inspect it and discover the worn and. defective parts described .by the witnesses. The injury to Young was fully described by the witnesses, the length of time he was unconscious, his impaired
We think the evidence tended .to prove every material fact involved in the pleadings and was such that it should have been submitted to the jury, although there was great conflict in the evidence. This court cannot find that the court below erred in overruling the demurrer to the evidence unless there was no competent evidence given which tended to support the plaintiff’s cause of action, jtnd upon which the jury might, under the most favorable construction of the whole evidence, find- for the plaintiff below. The court will not weigh conflicting testimony, but if there is any competent testimony tending to support every material allegation in the plaintiff’s petition, the case should be submitted to the jury. This matter has been too often decided by the supreme court to admit of any further comment upon it.
It is contended by plaintiff in error that at the time of the injury to Young he wüs handling the jack, and for its operation at that time he was alone responsible ; that is to say, if the jack had -to be handled with due care — and that seems to have been the exact condition — then the plaintiff handling it alone without assistance was certainly guilty of a lack of necessary care or he would not have received the injury. It is a well-settled principle of laV that where a person seeks employment in any line of business where there is danger he assumes the risk, and -hazard ordinarily incident to such employment. By accepting the employment he represents himself competent to perform that kind of work, and that he will not be guilty of negligence in or about the performance of the same. He owes to his employer vigilance aiid care in the ex
Plaintiff in. error claims that Young used the jack almost daily for five years ; that if there was a cog broken on the ratchet, Young could see that fact as well as Shook ; that if the pawl slipped, Young would observe that quicker than Shook could possibly ascer-tain it by an inspection ; that the fact that Young had made no complaint to Shook of the imperfection of the jack, although using it almost daily for five years, and had never informed him that it was dangerous, had never protested against its use, but had continued to use it, is the strongest evidence that could be produced that; he assumed the j.ack to be absolutely safe ; or, if he did not consider it to be safe, that he assumed
It was not only the duty 0/ the railway company to furnish the employees with reasonably safe tools and implements with which to perform their work, but also to exercise reasonable diligence ancl care to see that the tools and instruments furnished by it to the employees were kept in such repair and condition as would be safe for the purposes for which the employees were required to use them. It was not sufficient that the railway company, in the first instance, furnish safe tools and implements, but the law requires of it the exercise of reasonable care and diligence to keep such tools and instruments in a reasonably safe condition and repair ; and if the company fails to discharge its duty in this respect, and injury thereby results to the employee, without his fault, the railway company is liable for such injury. Where the railway compan3 has furnished, in the first instance, such reasonably safe tools and'implements to the employee, to. be used in the performance of the work ue undertakes to do, and the tools become worn, or some latent defect exists of which the company has no knowledge, or by the exercise ^of ordinary care and diligence it could not have discovered, and the employee using them has the same means of knowing the condition of the tools that the company has, and
In the case of the A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 666, Valentine, J., delivering the opinion of the court, says:
"(1) An employee of a railroad company, by virtue of his employment, assumes all the ordinary and usual risks and hazards incident to his employment. (2) As between a railroad company and its'employees, a railroad company is not an insurer of the perfection of any of its machinery, appliances or instrumentalities for the operation of its railroad. (3) As between a railroad company and its employees, a'railroad company is required to exercise reasonable and ordinary care and diligence, and only such, in the furnishing to its employees reasonably safe machinery and instrumentalities for the operation of its railroad. (4) It will be presumed, in the absence of anything to the contrary, that the railroad- company has performed its duty in such cases, and the burden of proving otherwise will rest upon the party asserting that the railroad company has not performed its duty. (5) And where an employee seeks to recover damages for injuries resulting from insufficiency of any of the machinery or instrumentalities furnished by the railroad company, it will not only devolve upon such employee to prove such insufficiency, but it will also devolve upon him to show either that the railroad company had notice of the defects, imperfections or insufficiencies complained of, or that by the exercise of reasonable and ordinary care and diligence it might have obtained such notice. (6) And proof of a single defectivo or imperfect operation of any of such machinery or instrumentalities, resulting in injury, will not of itself be sufficient evidence, nor any evidence, that the company had previous knowledge or notice of any supposed or .alleged defect, imperfection or insufficiency in such machinery or instrumentalities. (7) As between- a railroa 1 company and its employees, the rail*231 road company is not necessarily negligent in the use of defective machinery, not obviously defective, but if is negligent in such cases only where it has notice of the defects, or where it has failed to exercise reasonable and ordinary diligence in discovering them and in remedying them.”
The questions in relation to the condition of the jack, whether it was defective in the manner claimed, or whether it was in good condition, were all before the jury on conflicting testimony, and it was for the jury to determine whether the jack was defective, and if it was, whether the defendant below had any knowledge of its defective condition, or, if not, whether it could have discovered its condition by the use of ordinary diligence. These are all matters of fact for the jury, and the jury having passed upon the facts on conflicting testimony, their findings must be conclusive of the facts.
The final contention of counsel for plaintiff in error is that the court erred in permitting improper testimony to go to the jury. The evidence complained of by counsel all refers to the 'condition of the lifting-jack, by witnesses who were mechanics, and who had used the jack for a number of years, and were familiar with its construction, its operation, the frequency with which it. had been used, and its worn condition. The jack was produced in court before the jury, and the witnesses for both plaintiff and defendant explained fully the condition that it was in at the time of the injury. "We have examined the evidence with great care and do not think there was any substantial error committed by the court in permitting the same to go to the jury.
No error appearing in the record, the judgment of the district court is affirmed.