83 Kan. 627 | Kan. | 1910
The demurrer to the evidence was properly overruled. Although the plaintiff admitted in his testimony that during the time he used the push cars he learned that some of them worked harder than others, and that he knew this was because the cars stood out in the weather and got rusted and were never oiled, and that they would have run easier if they had1, been oiled, there is no testimony from which it can be said as a matter of law that he appreciated or should', have appreciated the danger of falling from the wall by reason of the car suddenly stopping. Before the master-can be relieved of liability by the servant’s assumption, of the risk incident to the service the servant must have-equal opportunity with the master to know the surroundings, and be equally competent to judge of the-risks and hazards. The very cases cited by the defendant in support of its contention (Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, and Clark v. Mo. Pac.
The defendant was not entitled to judgment on the special findings. While the findings show that between the rails of the track was a safe place to walk while pushing a loaded loom car, and that there was nothing to prevent the plaintiff from walking there while pushing the car at the time he was injured, the jury further found, in answer to question No. 18, that a loaded car could not be pushed around the curve safely and easily by the operator pushing and walking directly behind .the car. The effect of these findings, taken together, is that there were two ways in which the car could be pushed, one more easily than the other. Although one bf these ways was doubtless safer than the other, there is no finding from which it can be said that it was negligence for the plaintiff to walk on the harrow space which he testified it was necessary for him to do in order to push the car around the curve or that an ordinarily prudent person would not have done so.
The court properly denied the, request to submit to the jury the question whether the plaintiff, in walking on the wall while pushing loaded loom cars, took upon himself, the risk of falling. That was a question of law, and not of fact.
We find no error in the judgment, and it is affirmed.