*1 dismissing its order directions to set aside should reversed with such appeal.

It is so ordered. 42,942

No. Hall, Estate of Jr., O. Administrator of the M. Z. D. Concannon, Deceased, Ross Appellee. Appellant, Taylor, (378 82) P. 2d Opinion filed January 1963. Concannon, Hugoton, Wichita, argued Thompson, D. O. and Wm. P. cause, Hershberger, Jones, Jones, Jones, and A. Richard H. E. W. E. Jerome Smith, Wichita, Robert Roth and William R. J. were with them appellant. briefs for the Wolf, Hugoton, cause, argued Paul A. Brollier, Hugoton, S. J. appellee. him on was with the brief for the of the court was delivered by This was an action brought by plaintiff (appellant) Wertz, J.: Concannon, D. O. administrator Hall, of the estate of M. Z. Jr., laborer, farm deceased against deceased’s employer, Taylor, Ross defendant (appellee), for damages wrong- personal injuries ful death. The case was tried ato which returned its jury, general verdict in special defendant’s favor.

The facts in the instant case are not in The defendant dispute. only living eyewitness is the the em- tragedy. death of resulted a after days few the occurrence ployee of an explosion in attempting case, fire. The to establish his plaintiff, used de- about the fendant as witness facts only the accident. surrounding testified, substance, The defendant about July Hall work on his farm as a resident farm laborer at an employed house, $200, him furnish salary agreed monthly water, chickens; that a milk and some cow Hall’s electricity, work, *2 that he with general farm and continued such The defendant testified that he managed until date of his death. the farm; he and supervised along the the that worked with operation of Hall; told his work was very Hall did what he was to do and that reasonable, that exercised prudent Hall caution satisfactory; work the time exercise in performing up farm laborer would that Hall’s duties included Defendant further testified of his death. thievery buildings, in the farm the or prevention pilferage times, was at all whether defendant take care the cattle helping on there was to be done not; anything that Hall to do or was present no sections; defendant had ten consisting quarter a farm Hall; expected up that Hall was to lock than other other help the fire oc- where roundtop building the including the buildings, curred, his car. away after he night put every no the that he had defendant testimony further

It was the the during the farm on gas liquefied petroleum equipment before the accident. a short time just Hall for him until time worked gasoline combines used two self-propelled Defendant had previously To this inoperative. replace had combine on his farm. One become a used neighbor from a combine that was purchased defendant gas (hereinafter fuel referred liquefied petroleum equipped intended to change gaso- Defendant had over to as LP gas). an line, neighbor done Defendant’s loaned him had not so. tank, loaded and Hall this tank LP and defendant onto gas supply was used in the combine gas Hall’s truck. The operated pickup crop. of maize cutting Hall in the the Hall had had previous experience The evidence disclosed that in had driven combines and gas; use LP tractors using the farmers; the of other that he employ had told one gas while it. knew how to handle The evidence further disclosed farmer use experience had had no in the the of such gas. accident, of the December the date defendant and On the maize and took the two cutting finished combines—one Hall by gasoline powered by and the other LP powered the —to house, 5:25 m. the and about defendant and p. Hall were in the truck, on farm. Hall’s building the roundtop pickup with the bor- it, loaded supply LP tank still parked rowed was on ins’de the A the floor building. part of of this roundtop building was concrete was dirt. Defendant had balance had trouble years holes with rats rodents The rats had made six building. under the concrete floor to truck. Defendant right pickup of the and Hall had holes previously used oil water these gasoline, date, rodents, to rid attempt this building time, December for the first LP for this they purpose. tried said, our rats. We Defendant “This time good would kill Located to the left got right pickup butane tank here.” truck holes, feet from title rat building, approximately thirty was a natural gas had for several burning been hours. stove Hall, Defendant told ‘We better turn the stove because I off heard dangerous.” that butane or Hall turned explosive, was real then the hose off Defendant took burner. holes, tank and

supply some each put gas in rat beginning with the farthest one from tank. As defendant put each, dirt into holes as he had done stomped had to exterminate the rats. gasoline operation used *3 minutes, in ten completed five to and then the hung hose back on tank and the building. the left As he was he leaving truck, saw Hall get into the which was pickup loaded with the tank, but gas nothing said to him. Defendant further testified had reached a distance of or about thirty forty yards from the entrance to the Hall building heard attempt to start the truck and the at same instant the heard “the explosion and building went like a up whole front match into throwing severely Hall was burned and gasoline.” injured, some from which later; forty-eight he died injuries immediately hours after the and fire assisted defendant the explosion removing in pickup tank truck loaded with the LP from the building. testimony of chemist expert

The revealed that LP is a a butane both propane, mixture of of which gases are heavier air; such is than inflammable when is mixed with oxygen by either heat a might ignited spark; be or that contact with a hot surface metal or the spark electric motor might ignite mixture; such a that the principal uses of the are for heating, engines; and fuel for LP gas commonly not is used com- a as mercially fumigant.

At close of all the evidence the trial the court overruled motion an order to direct verdict plaintiff’s plaintiff’s favor in liability issue defendant’s and to submit the on case to the the only. issue of damages the plaintiff requested the trial certain instructions give requested court to and objected to other Also, the to given by objected trial plaintiff instructions court. court, submitted the trial all of special by certain which dealt later. with will a general jury, case was which returned submitted following to favor the defendant answers

verdict interrogatories submitted to it the court: What caused the “1. building round to to top explode? Attempting Answer: 2. had most experience start Who use pickup. Hall, Ross or Answer: gas, Taylor M. petroleum Z. liquefied Jr.? Hall, Z. know Hall, Jr., M. Z. 3. Did M. the danger using Jr. than to same or to extent petroleum gas greater Ross liquefied Hall, Z. Taylor danger? knew of Yes. 4. Did M. Answer: make any to kill Jr., objection using liquefied petroleum gas rodents? Hall, Answer: No. 5. Did instruct M. Z. Taylor Jr., Ross do any additional work had using after finished kill rodents? Answer: No. 6. Taylor using Ross Was If liquefied petroleum gas to kill rats? Answer: Yes. 7. your answer to Question yes, negligence is cause proximate damages sued for in this case? Answer: No. Hall, 8. Taylor negligent Jr., Was Ross to warn M. Z. failing round after so explosion top building the gas? Answer: No.” motions,

From an order has overruling his posttrial plaintiff appealed.

It duty that a rests master not to elementary upon the expose servant, discharge duty, to perils dangers against may which master guard by exercise of reasonable care. It masters duty provide is also the safe suitable with, machinery, implements tools and to work with reasonable *4 788, safe v. 186 upon. (Taylor Hostetler, materials to work Kan. 796, 797, 1042; Co., 352 2d v. P. Fishburn International Harvester addition, Kan. 157 138 P. 2d In it also been held has 471.) only it is not of a master to duty provide employees the a safe work, tools, work, to which to place suitable etc. with but that discharge of their labor may upon assuming enter the employees the the performed by employer. (Fishburn have been duties these 45, Co., It has also supra, pp. 46.) Harvester been International assumed an are those ordinary by employee only that risks decided of the master those performance by occur after due which on him. v. International (Fishburn law Har- imposes which the Moreover, jurisdiction servant, in this Co., the supra, p. 46.) vester

691 risks in contract of all of the of employment, ordinary assumes the of ordinary in the exercise care must foresee employment, in negligence of those with whom result may that the he works Hostetler, him. It has held to also been injury (Taylor supra.) of duty of master to warn his hazardous employee is the the the conditions. rules,

In view of the contended trial plaintiff mentioned that the matter of the should have instructed the a law that court as cause of the death of was the proximate negligence in the LP into rat under injecting gas of the defendant the holes and relied Finson v. Topeka, floor of the building, City the of 87, 723, to contention. Finson 87 Kan. Pac. sustain his In the an action wrongful for the of her plaintiff brought case the death of against employer, City Topeka. the husband husband Her by gas an cistern where he explosion was killed a was at work. city by court held liable reason of its not the negligence the a furnishing employee reasonably place safe which to work. tending was show that cause There evidence the immediate was that another struck a explosion employee match for the the However, court cigar. the held matter lighting as a purpose cause of proximate injury law that sustained in explo- negligent permitting gas was the act to escape sion into and In the opinion the cistern. the court remain stated: gas highly explode character as inflammable to be “Where liable to brought negligently escape with fire is into contact allowed into cistern, proximate place explosion like a room or cause of its is confined permitting escape act to be the into and to remain held dangerous gases place. explosion subtle An when thus con- in such consequence regarded probable might the natural as which fined principle recognized reasonably have This was been foreseen. and followed Co., 1082, Luengene Kan. case of v. Power Pac. the recent injured against person could recover in action it was held company producing what means without evidence to show became (p. 92.) ignited.” of the court is the Finson case majority case. the facts in the instant that case under In applicable is not any there was knowledge gas present had no employee case not only In the instant Hall was aware cistern. related used in the manner as heretofore being that LP was fact the holes. had pre- assisted in into He putting also for several years, on numerous occasions used viously use, had told one witness formerly its familiar *5 692

needed no explanation Moreover, about how to use the gas. told prior to the use of the gas, “We better turn the stove because heard that off butane was real I or explosive, danger- ous,” and Hall himself extinguished fire in the stove. Under such circumstances cannot be said as a matter of that law sole and proximate cause of the explosion and resultant death of Hall was the injection of the LP gas into the rat holes. areWe the opinion that the questions as to whether Hall assumed the risks incident to the employment whether was contributorily under the circumstances were proper questions to be submitted to the jury. question proximate cause is almost always Crum, for question 1, jury. 186 Kan. (Bateman 639; Co., P. 2d 348 v. Home Applegate Oil 182 Kan. 324 2dP. In State Farm 203.) Cromwell, Mutual Ins. Co. Automobile 573, Kan. 2d 358 P. we stated question that the of negli- gence, the determination including cause, of proximate ordinarily rests in province The trial jury. court did not err in motion for an order overruling plaintiff’s directing verdict in his favor on the issue of defendant’s negligence and in not submitting question plaintiff’s damages only.

Plaintiff error on the predicates court’s trial instruction giving 6,No. which stated: “Where an employee has ceased for working or under his direction and employer control and was acting outside of the of his scope employment or said employee was work- then he cannot sustained,” his own benefit recover for ing objects question the same time No. special 5 before at related. It stated there was no evidence may be whatsoever to support nor support giving question instruction special No. 5. say a resident farm paradoxical It laborer has working to 5:00 when the evidence undisputed hours 8:00 in this case employed month, Hall was to work for $200 was that that there hours, no set his duties required twenty-four-hour However, is of the this court opinion that the vigil. giving asking special question instruction was not preju- a reversal. requiring error dicial contends the trial court erred next

Appellant submitting special the jury. 2 and A Nos. review of the record reveals Hall had stated on several occasions knew how to use LP needed no instructions. evidence went to the question knew not Hall of the or involved in the of whether use of *6 LP and whether or not he assumed the risk in it. Under such circumstances arewe of the opinion two not erroneously given.

areWe of the opinion sufficiently instructions given covered the questions requested at issue and the of those substance by defendant. record,

After a careful majority review the entire court is of the make it clearly has failed to opinion plaintiff appear there was a reversal any justify error that would prejudicial of the judgment. I cannot with the (dissenting): agree majority Wertz, J.

that, rules, under our I to me to write. am of the assigned opinion the rule stated in v. City Topeka, the case of Finson 87, 723, Kan. 123 Pac. should be here. applied The facts in this case and the facts in the Finson case are similar in that both cases involve master’s liability for to his servant caused by explosion inflammable had been allowed to negligently into a escape confined area. In the instant case the from fumes the LP accumulated in the roundtop building, and an explosion confined, this subtle and when thus dangerous gas, should have been regarded and foreseen reasonably by defendant as a natural and probable and he should consequence, have anticipated afire. being of its set The fire for which defendant should guard have been on or which he should have foreseen or anticipated need not have been the one set by spark the engine of the truck. his own pickup By testimony defendant admitted he was aware of the fact that butane was highly explosive dangerous, and the undisputed evidence disclosed the uses principal of LP gas are for and fuel for that it is heating engines, and not used a fumigant. as commercially

The maimer which the is not ignited becomes material. We the rule that should where inflammable apply highly character that is liable into contact with explode brought fire is allowed to into a confined negligently escape place, proxi- act mate is the .explosion permitting cause of a place. (Finson into and remain To- escape City This rule on a master who uses peka, imposes liability supra.) other than those for which are gases explosive purposes Under this rule the of the master negligence intended. normally In the instant case the evi- undisputed shown. would to be have dence established and the so found. negligence, defendant’s

The mentioned rule would not the use of the affirmative preclude risk, defense of since the of risk doctrine assumption assumption into ordinarily a matter of conduct in getting involves preliminary dangerous risk of situation. A is deemed to assume person injury when a certain course dangers knows of involved action, has a full then of the risks appreciation involved Worden, voluntarily exposes himself to the risk. (Shufelberger 379, Kan. 369 P. 2d cited In the per- and cases therein.) formance of the duties of a farm laborer Hall would have ordinary risk; however, assumed the normal he was which position placed in the did use of the extraordinary gas by not fall within category. this

The jury found that his negli- but defendant was gence was not I would proximate cause of Hall’s injuries. hold apply case, the stricter rule of the Finson liability supra, that once the the gas, defendant is in the use of found negligent his negligence was resulting injury. cause of the proximate

I am of the in giv- error opinion the court committed prejudicial ing instruction No. 6 and in No. 5 over submitting special question plaintiff’s objection. There instruction was no to support evidence fact, No. 6. In that Hall was resi- undisputed evidence was dent farm laborer with no set hours to work general his duties were This instruction subject twenty-four-hour vigil. on the legal effect has employee of an sustained after the injury ceased There working for his not been employer given. should have was no evidence to I the answer to No. 5. support special question believe, do not of sub- question view the answer to the special court, not, substance, mitted that the did base its jury verdict on the fact Hall had ceased for the day work and was on his own time when the explosion occurred.

Special questions Nos. and 3 were submitted to erroneously the jury, were No. 2 prejudicial in their effect. Question asked, essence, “Who had the with the use of experience most asked, essence, gas, defendant or Hall?” No. 3 Question ‘Did Hall know of the same or of this danger greater extent than the comparative experience defendant?” The or the comparative of the knowledge parties determines no issue this lawsuit. If these in con- submitted nection that Hall assumed the risk of theory defendant’s where instance every this were erroneous. It not injury, they results that one himself exposes danger injury to a known where recover, of cases only is denied a in that class right ordinary imminent that a person is so danger obvious it. himself to subject not under like circumstances would prudence full act without a certain knowledge doing Mere a plain- preclude is not sufficient to of the risks appreciation involved knowledge may there be added recovery though tiff from even v. Carlson (Wainscott some risk. danger a comprehension 649; v. Co., Shufelberger 2d 179 Kan. 295 P. Construction a determination Worden, risk supra.) Assumption requires the risk fully danger, appreciated knew of the whether servant three of All the risk. encounter voluntarily involved and chose to Worden, Ques- supra.) these elements must (Shufelberger exist. and ex- knowledge comparison tions 3 ask for a only Nos. of risk Assumption the defendant. perience between Hall and comparisons. element these does not as an have the judg- am the reasons, In I foregoing view of remanded and the cause ment the trial court should reversed for a trial. new dissenting opinion. in the join foregoing JJ., and Jackson,

Robb 42,949 No. Pittsburg George Fauvergue, Jr., and

Rock, Inc., Appellee, O. *8 Reclaiming Company, Inc., Appellants. 138) (378 P. 2d