90 Kan. 452 | Kan. | 1913
The opinion of the court was delivered by
While Allen Taylor, an employee of the Atchison Gravel, Sand and Rock Company, was engaged in filling a drilled hole with powder preparatory to blasting rock in a quarry, the powder exploded, injuring him severely. He sued the company and recovered a judgment, from which it appeals.
The defendant maintains that the evidence did not warrant a recovery. There was testimony tending to
The evidence warranted a finding for the plaintiff on the ground that the defendant owed him a duty to test the hole before it was loaded; that he believed and was justified in believing that the test had been made, and that he rightfully relied upon the assurance that it was safe; that the injury was due to the negligence of the superintendent in failing to make the test, and in directing the plaintiff to load the hole without this having been done; that the plaintiff was not guilty of any negligence, and did not assume the risk of an explosion.
“The court instructs you that if the defendant and the plaintiff were on an equal footing in opportunity for knowledge of the facts and conditions of the work of preparing the hole in question for shooting, and also in ability to interpret them, and the plaintiff knew or ought to have known and duly appreciated or ought to have appreciated the danger, if any, and continued to work, he assumed the risk and can not recover, and your verdict will be for the defendant.”
Granting this to be a correct statement of the law as applied to the facts of the case, we think it would not have materially aided the jury in reaching a correct result; we are convinced, at all events, that it was not necessary to a proper understanding of the case on their part. The points at issue were few and simple. The plaintiff testified in effect that he was told the hole had been tested; that he believed this and made no test himself. The defendant maintained that he had not been told that a test had been made, or that the hole was safe; that he did not rely upon a test which he supposed the superintendent had made, but upon a test which he made himself. The superintendent testified : “I told him [the plaintiff] to go ahead and load the hole, as I was busy and did not have time to go and examine it.” No special findings were made, but the jury evidently believed the plaintiff’s story. They could hardly have given him a verdict without believing that he thought the hole had been tested and had sufficient reason to think so. In that case he could not be deemed to have assumed the risk.
The defendant submitted several separate instructions, each to the effect that no recovery could be had
The court was asked to instruct that if the jury were unable to determine the cause of the explosion they must find for the defendant. In the defendant’s brief it is said: “The record shows that there are several causes which might ignite the powder, for instance the hole might be too hot on account of the spring blast, or there might be a piece of burning fuse in the hole.” It was not necessary that the jury should decide between these causes. It was enough that they believed the cause was one that could have been discovered by a proper test, and this was made sufficiently clear by the instructions given.
Complaint is also made of a number of the instructions that were given. The court instructed that “the master owes the servant the duty of exercising reasonable care and diligence, and to provide the servant with a reasonably safe place in which to work.” This is complained of. on the ground that it defines the master’s duty as that of furnishing a safe place, instead of using diligence to do so. If this interpretation is correct, the inaccurate statement does not justify a reversal. (Kamera v. Boiler Works, 82 Kan. 432, 108 Pac. 806; Reynolds v. Mining Co., ante, p. 208, 214, 133 Pac. 844.) A reference was made to the duty of furnishing safe tools. This was unnecessary, but not prejudicial. The instructions concerning assumption of risk are criticised. Assuming that they lacked accuracy, we think the verdict can not have been influenced thereby, in view of the character of the issue of fact. As already suggested, the jury obviously found that the plaintiff reasonably believed the hole had been tested, and in that case he did not assume the risk. The court instructed
The judgment is affirmed.