85 Kan. 167 | Kan. | 1911
The opinion of the court was delivered by
W. M. Ringer recovered' a judgment against the St. Louis and San Francisco Railroad Company on account of an injury received while in its employ, and the defendant appeals. The essential facts, as shown by the plaintiff’s own testimony, may be thus summarized: The plaintiff was a section hand, and had been engaged in that work for over seven years. He and another hand’ were at work under a
Upon these facts we are constrained to hold that the plaintiff can not recover. “The facts and the danger they presented were both within the comprehension of any ordinarily intelligent and prudent man, and were as completely within the knowledge and appreciation of the plaintiff as of his employer. Therefore he can not recover.” (Gillaspie v. Ironworks Co., 76 Kan. 70, 73.) The plaintiff had as good an opportunity as the foreman to know of the actual condition of the pinch bar, and his experience enabled him to judge of the effect the wearing away of its point would have upon its slipping. True, he had no immediate opportunity to select any bar other than one of the two upon the hand car, but the defective bar had been for a long time a part of the outfit of tools with which his crew worked and he had abundant chance to observe its condition. There was no emergency requiring instant action. The foreman’s direction to hurry up a little, given because a train was expected, did not prevent the plaintiff’s taking note of which bar he was using, and of its condition. The case seems clearly within the line of decisions of which that just cited is an illustration, holding that an employer is not liable for an injury resulting from a danger which is equally obvious to the employee. (34 Cent. Dig. c. 1198, §611; 13 Dec. Dig. p. 565, § 219 [2]; 20 A. & E. Encycl. of L. 130; 26 Cyc. 1202; 1 L. R. A., n. s., 948, note; 98 Am. St. Rep. 313, note.) An application of the same principle has given expression to the rule that an employer is not liable for a failure to inspect simple tools in common use. (98 Am. St. Rep. 298, note; 1 L. R. A., n. s., 948, note; 13 L. R. A., n. s., 668, note.) In the following cases in which employees sustained injuries through using defective crowbars recovery was denied upon the ground
“By reasonable attention he would have learned the condition of the bar. By inattention to its condition he took upon himself the risk of there being some defect in it. The consequences of the risk he took are his misfortune. It can not well be shifted over onto the defendant. If he had observed and discovered the defect, it was negligence to use the bar. If he did not observe and discover the defect, he was negligent in failing to observe and discover it. Such negligence prevents his recovery.” (Holt v. Chicago, Milwaukee & St. Paul R. Co., 94 Wis. 596, 599.)
“The defect was patent. The fact that, as a rule, the master has a better opportunity to inspect the machinery or tools, and must use a higher degree of care than his servant, does not release the servant from exercising care, and this is specially true of so simple a tool as a crowbar placed in the hands of the servant, and which can be as readily, if not more readily, inspected by him than by the master. The statement of appellee that he did not know of the defect is vain, when from his own evidence it appears that the slightest examination would' have shown the defective condition.” (Vandalia R. Co. v. Adams, 43 Ind. App. 664, 668.)
Under circumstances similar in principle to those here presented the ground of the defendant’s nonliability is sometimes called assumption of risk and sometimes contributory negligence. Recent notes distinguishing the two defenses are found in 28 L. R. A., n. s., 1215, and 18 A. & E. Ann. Cas. 960. A special feature of the plaintiff’s testimony in this case makes it clear that his injury was occasioned by his own failure to
The judgment is reversed and the cause remanded with directions to render judgment for the defendant.