75 P. 480 | Kan. | 1904
The opinion of the court was delivered by
The defendant in error was engaged in rebuilding its bridge across the Missouri river at Atchison, and in so doing was removing and replacing the ironwork composing it. For thatpurpose it had erected a false work upon piles considerably wider than the bridge on either side. A huge crane or “traveler,” spanning the entire structure from side to side, movable lengthwise of the bridge upon rails on either side, was erected for the purpose' of attaching a block and tackle with which to lift and adjust the iron beams as they were removed from their places. The plaintiff was employed in and about this work, under a foreman. The hoisting was done by a machine denominated a “nigger-head,” run by an engine at a uniform rate of speed. The custom in moving beams was. for a workman to connect the tackle to them by making -a hitch about the middle ■
On the occasion in question, the workman whose duty it was to fasten the chain around a beam then being lifted left the place too soon, so that the chain became unfastened. The foreman, with some vigor and profanity, called upon the plaintiff to readjust the hitch, telling him not to be in so great a hurry to get away, but to stay until he was certain that the hitch would remain fastened ; that he, the foreman, would tell plaintiff when to get away. The plaintiff made the hitch, and gave the signal to the foreman when he was ready to have the load hoisted, and the foreman directed the starting of the engine for that purpose. The ropes from the top of the traveler, which was about fifty feet above, were not perpendicular, so that as the beam started it was swung to one side. The plaintiff, having remained too long at the place of hitching, was unable to get to a place of safety in time to avoid the swinging motion of the beam ; there being no snub-line attached by means of which other workmen might control its motion. The beam, thus left to itself, swung against the loose plank on which the plaintiff was endeavoring to reach a place of safety, knocked it from under him, and he was precipitated to the ice on the river below and badly injured.
It was for the recovery of injuries thus sustained that plaintiff brought this .action. The jury returned a general verdict in his favor, accompanied by many special findings. The defendant filed its motion for judgment upon the special findings, notwithstanding the general verdict, and also its motion for a new trial. The motion for judgment on the special findings was overruled, and the hearing upon the motion for a new
It is complained that the court was in error (1) in' setting aside the judgment rendered upon the general verdict after the expiration of the term at which it was rendered, it having no jurisdiction so to do ; and (2) if the court had jurisdiction to make such order at the time it did, that the special findings were not so inconsistent with the general verdict as to require this to be done. If the special findings were so inconsistent with the general verdict that both could not stand together, then the court erred in overruling the motion in the first instance, and the judgment entered at that time was certainly irregular and as such might be vacated at or after the term at which it was' rendered, under section 5054, General Statutes of 1901. A judgment must follow the verdict. Any other course would be irregular. The controlling verdict is the one indicated by the special findings. It would be the court’s duty to enter judgment upon the verdict, and to this end he might change the judgment at á subsequent term if incorrectly entered at first.. (Tobie v. Comm’rs of Brown Co., 20 Kan. 14.) We are required, therefore, to make inquiry as to whether the special findings were such as to control the general verdict and compel a judgment to be entered for the defendant, notwithstanding the general verdict.
The negligence of the defendant, as found by the
From these facts the defendant deduces the conclu- • sion that, as the plaintiff was in a position to know from the slant of the lifting-tackle that the beam would likely be drawn to one side, and was in a position, had he looked, to have known that there was no snub-line with which to control the motion of the beam «which was being lifted, and because he knew the speed at which the “nigger-head” was being run, and consequently the rate at which the beam would be lifted after he gave the signal to start, he assumed all of the risks in the lifting of the beam in that particular manner, and that therefore he was not entitled to recover.
We think that one important element is omitted from the defendant’s chain of reasoning. It is not only necessary that an employee should know of the facts which go to make up the negligence of the em
The last element of the equation is as much a matter of fact for the jury as is the former, and in determining it the jury must take into consideration all of the circumstances and surroundings. It might here be claimed that plainly the plaintiff should have grasped these details of danger and correctly deduced therefrom the proper estimate of the risks incident thereto. We must, however, remember that this would depend not a little upon the capacity, age and condition of the plaintiff, concerning which there is no special finding. We must further remember that he had just been hurried to the work, had been violently chided for too great haste in getting away from this place of danger, had been told to remain there until sure that the fastening was secure, and had been informed by the foreman that he would tell the plaintiff when to get away. All this would have a strong tendency to make the plaintiff less observant of the dangerous surroundings, less critical as to unsafe conditions, and less competent to judge of the danger to which he was exposing himself, growing out of these surroundings and conditions.
Now, while some of the elements of the problem involved were determined in favor of the defendant, by