76 P. 441 | Kan. | 1904
The opinion of the court was delivered -by
The plaintiff in error, defendant below, is a corporation engaged in the operation of a packing plant, and the plaintiff below was injured while in its service. On the morning of his employment the plaintiff entered the plant through the superintendent’s office, and was shown from that room to his place of work by a guide. He left the plant in the evening by reversing the course he had followed in the morning. The next morning he attempted to enter at the same place as before, but found the door locked. After waiting a
So far as the evidence discloses, the defendant in error entered the building through the only general way provided for that purpose. He had never been in the hall before and was ignorant of the location of the hatchway. The hall was used for the passage of persons, as well as for access to the hatchway into which plaintiff fell, and to another hatchway some ten feet nearer the entrance. Sockets for three electric lights were provided for the hall at the time of the accident. The hatchways were twenty-four inches square, and each one was surrounded by a two-by-four-inch piece of wood, nailed to the floor. The packing company provided covers for the hatchways, to be used when men were not at work, which, at the time of the accident, were near by, but not in place. The hatchways were used for the purpose
The plaintiff charges the company with negligence in maintaining open and unguarded hatchways in an unlighted hall used as a passageway into the plant. The defendant answers that the plaintiff must have realized the necessity for light when he found himself enveloped in darkness, and, hence, that he assumed all hazard attending any further advance. It further answers that, having provided covers for the> hatchways, the failure to use them was negligence on the part of the plaintiff’s fellow servants, for which the defendant is not liable.
It is elementary law that the defendant was required to furnish the plaintiff a safe place to work and safe means of access to his work inside its buildings. This duty the plaintiff had a right to believe the company had performed. When he found himself in the dark passageway the plaintiff’s information regarding the place did not extend beyond the matter of an insufficiency of light. But darkness alone could not throw him down and mangle him. The open doors from the dock into the hall were an assurance of safety. He was ignorant of that which made the hall a place of peril. He was not on equal terms with the master in estimating the hazards of his surroundings. He was not obliged to institute an investigation for hid-' den menaces which could exist only by virtue of a
The second argument in defense of the company assumes that it discharged its duty when it furnished covers for- the hatchways. The evidence, however, does not compel the acceptance of any such view. The jury had a right to believe the. openings to be dangerous to persons following the hall as a passageway while workmen going to and fro properly using them were momentarily away and while they were uncovered for ventilation ; and that barriers of some kind about the holes were necessary to render the place a safe one at all such times. The evidence was not sufficient to require the jury to find that the covers were negligently off the hatchway when the plaintiff fell into it. The defendant produced a witness who sought to create such an impression without admitting the fact, but the .jury were not obliged to follow him in his effort to shift the company’s responsibility. Therefore, a contributing cause of the injury may be found in the failure to erect railings, and the company be remiss in its duty notwithstanding the fact that it furnished movable covers.
The second argument in defense of the company further assumes that the workmen who were charged with the duty of replacing the covers over the hatchways were fellow servants with the plaintiff. This
Admitting both assumptions just discussed to be correct, however, the concurring negligence of the company in the matter of lighting the hall still rendered it liable.. (A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343;. A. T. & S. F. Rld. Co. v. Holt, 29 id. 149.)
The foregoing considerations render a detailed discussion of the instructions given and refused unnecessary.
On the trial the defendant placed upon the stand a witness who assumed responsibility for the closing of the hatchways, and who in positive terms claimed to have exercised great diligence in requiring the covers to be used. In the course of a rigid cross-examination this witness stated and maintained that the hatchways had never been left. open, according to his knowledge. To confute his testimony, the plaintiff’s attorney pressed him to admit that he remembered a time when one of them had been left open, and an employee had fallen through. The company complains that an attempt was made to prove negligence by showing a previous accident at the same place. Under many circumstances this is permissible. (City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933; Mo. Pac. Rly. Co. v. Neiswanger, 41 id. 621, 21 Pac. 582, 13 Am. St. Rep. 304.) But the record presents no such question, since the testimony assailed was brought out in a legitimate way, as an incident to a proper cross-examination of one of the defendant’s witnesses.
The judgment of the district court is affirmed.