94 Kan. 201 | Kan. | 1915
The opinion of the court was delivered by
Victor Suniga recovered a judgment against The Atchison, Topeka & Santa Fe Railway Company for damages for personal injuries alleged to have been caused by the carelessness and negligence of the company and its servants. It appears
It is first contended that the evidence does not sustain the finding that a sufficient number of men to safely place the car back on the track were not fur
There is a further contention that the plaintiff was well acquainted with the nature of the work, the number of men engaged with him; that he was necessarily cognizant of the risk of doing the work with four men, and therefore that he must be deemed to have assumed the risk. Some stress is placed upon the finding that he partly realized the danger of the situation and of the work as it was conducted. To bar him from a recovery on this ground he must not only have known of the existing situation and conditions but he must also have realized and appreciated the danger of continuing the work. (Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 100, 140 Pac. 105.) The finding-implies that he did not fully realize the danger of the undertaking; besides, the conditions were not continuous and uniform, and he could not well measure the weight or realize the
The judgment of the district court is affirmed.