Southern Kansas Railway Co. v. Drake, 53 Kan. 1

Southern Kansas Railway Co. v. Drake

53 Kan. 1

Kan.

1894

Check Treatment

The opinion of the court was delivered by

JohnstON, J.:

There is but little room for dispute as to the cause of the injury for which a recovery is sought, and the findings ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of fаct as returned by the jury, when considered in connection with the previous rulings of this court, clearly *6pоint'to the judgment that must be rendered. No negligence is imputed to any of the employés of the railway company who were assisting Drake in unloading rails from the push car, but the contention is, that the injury resulted from the failure of the company to provide a sufficient number of men to perform that kind of work with reasonable safety. Assuming, as we may, that the company had not provided a sufficient number of persons to perform the labor safely, still we cannot overlook the fact that Drake was fully aсquainted with all the hazards incident to the employment, and chose to accept and continue in the performance of such work with full knowledge of all the dangers connected with it. The work оf unloading rails from a push car required no special skill, and involved no perils except such as are obvious to every one. Drake, as we have seen, had been engaged in that kind of labor for 2J years, and had performed similar work with the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍same or a less number of men. He claimed that it requirеd eight men to safely do that kind of work, and a greater number than five had previously been employed by the company; but for several months before the accident the crew consisted of only fivе men, and work of the character in question had sometimes been performed by four of them. He continued in the service of the company long after the force at work in the yard was reduced, and if the number employed was insufficient to perform the work, he was aware of that fact. The foreman was not present at the time of the accident, and the jury have said that he had a greater knowledge than Drake as to what constituted a sufficient force of men; but that is immaterial, as the jury have found that Drake himself was capable of judging as to what number would be a sufficient force оf men to do the work he was engaged in at the time he was injured, with reasonable safety to the men еmployed.

*71Ipioye-aessumP *6The place for unloading the rails was selected by the men, and before any rails wеre unloaded attention was called to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍character of the place and to the condition of the ground. On account of rain on the previous night, the bank upon *7which the rails were tо be thrown was in a slippery condition, and, after being cautioned by one of the men, all agreed that it would be unsafe to step upon or against the bank while they were unloading the rails. Notwithstanding this warning аnd agreement, Drake set his foot against the bank, slipped, and fell, and the result of the fall was the рinching of his fingers. Strangely enough, the jury said that there was no evidence to show that the slip caused him tо fall, but, in view of the facts found and conceded, this finding is unimportant. He rests his case wholly upon the failurе of the company to furnish sufficient help. He was an experienced man, of full age, capable of judging what number of employés was necessary to safely do the workj ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and if there was an insufficiеnt number, he knew that as well as the company knew it. The work was simple, and the risks and dangers were obvious. Possessed of a knowledge of the men employed, the manner in which the work was to be done, аnd the hazards which it involved, he voluntarily accepted employment, and continued in the service of the company, and must be deemed to have assumed the risks incident to such service. We only follow in the path of authority in holding that an employé, by voluntarily remaining in the service, with full knowledge of the dаngers of the service, assumes the risks of such dangers, and absolves the employer from liability for damages in case of injury. The facts in this case bring it within the rule of A. T. & S. F. Rld. Co. v. Schroeder, 47 Kas. 315, and cases there cited. In that case, the injury was alleged to have resulted from a failure of the railroad ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Company to furnish sufficient help tо perform the duties of the employé, and it was there said that while

“It is the duty of an employer, whether a railroad company or other corporation or person, to make the work of his or its employés as safe as it is reasonably practicable; yet when the employé, with full knowledge оf all the dangers incident to or connected with the employment as it is conducted, accеpts the employment, or, having accepted the same, continues in it with such full knowledge, and without аny promise on the part of the employer, or any reason to expect *8on the pаrt of the employé, that the employment will be made less dangerous, the employé assumes all the risks аnd hazards of the employment.”

See, also, Rush v. Mo. Pac. Rly. Co., 36 Kas. 129; Clark v. Mo. Pac. Rly. Co., 48 id. 654; S. K. Rly. Co. v. Moore, 49 id. 616; U. R. Rly. Co. v. Monden, 50 id. 552; Railway Co. v. Corps, 24 N. E. Rep. 1046; Railroad Co. v. Rogers, 57 Fed. Rep. 378; Railway Co. v. Lemon, 18 S. W. Rep. 331; Railroad Co. v. Barber, 5 Ohio St. 501; Kelly v. Railroad Co., 5 Am. & Eng. Rld. Cas. 649; Smith v. Railroad Co., 41 id. 289; Crown v. Orr, 35 N. E. Rep. 648.

Under the rule of these authorities, the facts show no right of recovеry in Drake, and hence the judgment must be reversed, and the cause remanded, with instructions to enter judgment upon the findings in favor of the plaintiffs in error.

All the Justices concurring.