*1 H. E. and Wall Tile Braden, v. Floor Respondent, Friedrichsen Appellant. Company, 4, City Appeals. 1929. March

Kansas Court of *3 Mosman, Rogers & Buzará appellant. for <& Trusty Pugh and ds Bums Bums respondent. for BARNETT, C. This personal action for injuries received by plaintiff working while as a laborer in clay defendant’s tile fac tory. Plaintiff judgment obtained a $7000 and defendant has appealed. Plaintiff had working been in plant defendant’s for about eight seven or months. White clay was baked brought and then in room where worked and through run a crusher. dampened then and put through grinder a pulverized. and this For purpose of dampening clay layer clay crushed spread upon sprinkled the floor and clay A hose. bin about ten or upon twelve long feet sat floor, and back of the clay bin there a which ladder stood in a perpendicular position platform which led to a above, upon grinder which the stood. grinder This would become choked with ela.y and for the up climb open the ladder to up or “unehoke” the grinder, and then return the ladder to the first floor. Plaintiff testified dry that wlien the clay brought in it clay would cause dust upon to settle objects the various room, in the sprinkling and in clay, clay both the get the dust Would wet and he would thereby get clay upon wet feet, clay and the would come off upon his feet rungs of the ladder. He testified he used this ladder from six to fifteen a day. times He testified that ladder was “toe-nailed” upon to the shelf grinder which stood, and was fixed a cleat shelf, or brace above the one end of which was nailed to the side of the ladder and the other end of which was nailed to some in fixture building. Another cleat or had brace been the ladder but had come off and the which nails held the ladder had worked loose. There had been a brace nailed to the ladder, pushed bottom of the against wall kept and thus position, in a vertical this had also come off. The wall, bottom of the ladder stood out because shelf grinder projected which the plain- stood out from wall. rungs tiff testified of the ladder worn, and, had become insecurity ladder, because of the 'the bottom of the ladder push in it, toward the wall when he was shaky. was loose and testified had told his times; foreman about the the ladder number condition of April, 1924, promised month of foreman repair but had done so. Plaintiff was hurt June. About plaintiff’s injury plaintiff again complained two weeks before *4 foreman the condition of the but he does not state about promised any repairs. at whether the foreman that time to make plaintiff fully dangerous. The understood that the ladder was He shaky time, testified that the ladder became looser and more all the somebody April he the foreman he or was told that dangerous; get fall and He that he knew it was hurt. stated getting time, nothing fixing all looser the was done about fix himself, but the ladder. Plaintiff made no effort to any nails explains by stating he did not have or tools it, fix he the condition of the and when told his foreman about any On him with tools or nails. or did not furnish ladder the foreman descending lad- day June, 1924, plaintiff was 9th about the his feet attending the shelf. One of to his duties der after injuries. thereby sustained slipped, and he fell and contradictory much There is evidence in the record, we have nothing not set it out as we to do with weight of the evi proved dence. It was that the in a deposition, and in his testimony upon gave former trial, testimony which in certain re spects testimony contradicted appeal his at from the trial which this taken. appears exceptions plain It also bill of that the tiff, objection over defendant, superior agent testified that a defendant, injury, after the him sent to the Travelers Insurance Company City; in Kansas he company Went to the insurance and talked to company’s someone at the offifceand someone in the insurance officehad him sign something which he did not read. De attorney fendant’s then moved jury discharged for the testimony reason “only the purpose for of settlement signed statement, prejudicial. because it is preju It is dice of the worst kind I discharge jury.” and move to jury was then excused and upon plaintiff’s the court called at torney give asking questions. reason for attorney stated that in the former trial attorney developed defendant’s had fact signed had for the statement Travelers In Company, surance agent and the who took the statement had been put upon the stand and claimed that statement was any fraud. The defendant had not offered such statement in evi dence. The attorney again defendant’s moved discharge the court to gone because'the had into the matter sole] purpose showing negotiations that «some for settlement had been made, testimony offered to an idea that after statement, defendant had taken the it had found out that liability. there was some The court then overruled the motion to discharge exceptions and. properly were saved. Plaintiff never did tell what was said in the insurance office. Before the plaintiff’s counsel, examined on the voir ddre the in the absence objections of the jury, defendant, and over the asked defendant’s attorney whether or not liability insurance, defendant carried cover injury ing in question, witli the Travelers Company; Insurance attorney and defendant’s stated attorney did. Plaintiff’s company then asked the insurance had an office in City Kansas many and how men employed. and women were there The answer forty fifty. Then, presence was about or jury, plain of the attorney tiff’s asked anyone the members of the whether jurors now, employed by or had ever been In Travelers Company, anyone owned, surance whether of them owned, or had financially stock or bonds or been interested in the Travelers anyone Company jurors Insurance and whether employed by Travelers Company. relatives Insurance Defend *5 attorney jurors whether, ant’s asked the it was shown that there case, of insurance in the matter that would effect the ver dict.

OPINION. Appellant have contends tliat a demurrer to evidence should injury for the plaintiff’s been sustained that was due to reason conditions and which were to his work which he himself incidental created; ladder, merely slipped because he from a and his fall was negligence not shown have alleged. been We the result of the (cid:127) agree do not with this contention. not think that the fact We do an upright ladder and was installed for use of employees other going was of itself overhead shelf negligence. evidence of we think Neither do shown steps the fact that slick of the ladder were made clay the wet upon plaintiff and, perhaps, feet of of other em ployees, steps nor the fact that some of were the ladder more or less steps worn. There is the lad no contention that the place der likely were worn to the where were to break. It require employer away would unreasonable to to throw a ladder began and install a new so soon as it to show evidence one of wear. upright no it lad There evidence that was unusual for ders to be manufacturing hand, installed in On plants. the other common observation a teaches that the installation of such no means upon uncommon. incumbent install means ascent and descent which will the utmost secure possible safety. performs He adopts his when he the means general use, reasonably are if such means be safe. [Beck Anheuser-Busch, Mfg. Co., man v. App. 555; 98 Mo. Blundell v. 552; 189 Mo. App. Courter v. 136 Mo. Mercantile There was prosecuted no evidence work could been clay getting upon employees upon without wet the feet of the and rungs keep ladder. that he could not testified getting clay upon from wet his feet and the ladder. This -was assumed, employment. a risk which he as incidental to his However, merely by there is evidence that was secured the ladder nailing by putting to the overhead shelf one brace above the result, weight It was As a shelf. not fastened at bottom. longer ladder, push body, stepped would of man’s wall, the man end toward the the ladder so that would using up We climbing bad the ladder to lean backward down. from this properly think that the could determine evidence reasonably by men whose feet ladder was not safe for use naturally claju because of this be covered wet slipped. A man’s foot would be much condition foot slip away from him and more a ladder that leaned swayed clay feet, If man with wet wdiile at the bottom. attempt climbing weight upon should rungs, to bear his *6 706 slip under be much more securely

his foot if it were fastened at bottom. may properly dele by appellant It is contended the master repairs which take gate duty mailing simple to the servant the skill and well within his a small labor and which are amount of undoubtedly It is also the law the means at hand. This the law. ordinary care for duty exercise devolves servant to though repairs, even there is safety by making minor his owm such performed by serv express no contract duties are to be that such Respondent by claiming that when the meets ant. this contention promise the servant repair, master made a this releived duty that the evidence showed matter; in the further claim nails with tools or wherewith was not furnished servant repair. to make the repair rely upon promise disclosed plaintiff cannot apparent danger It is true if the becomes this record. prom master complains master, and the

the servant and he may danger, then the servant repair ises or remove the the defect period of time as w'ould be rea rely upon promise for such a after time performance. But allow the master for its sonable to expectation that elapsed preclude all reasonable has as would upon the longer rely promise kept, servant can no would be 510; Buckner v. 488, 222 l. c. promise. Lounge Co., Mo. v. [Coin Foundry Iron & Co., 701; 221 v. Union & Mo. Halloran Horse Mule App. 471, Distilling Co., 174 Mo. Co., 479; 133 Bliesner v. l. c. Mo. 156; Conroy v. Cavanaugh, App. 93 139; Dowling Nash v. & Mo. v. Dold 35; App. 102; 6 Stalzer Works, Iron 62 Mo. Mo. Vulcan 576; Central Coal App. 565, c. Hannon v. Parking Co., 84 Mo. l. Mfg. Co., 67 232; Meyer Gundlach-Nelson 156 Mo. Coke v. & App. Mo. plaintiff

In this case the continued to work from April, when the promise made, Was until the 9th of the following A period June. of three weeks has been held to be an rely unreasonable time to promise such a more where time would required have been to rem edy danger than in the case before us. v. Metropolitan [Graves Railway Co., Street App. 337, Mo. l. c. 343.] evidence that ivas not furnished with tools or nails with which repair to make the takes case out of the rule that may rely upon the master the servant to make repairs such minor as are within his skill and the means at hand and which are nec- safety. essary for his If no nails or tools hand, wtere at then the guilty could well find that was not in failing plant go material, to leave the search of for it was to be constant attendance upon the clay grinder which operated by defendant. Appellant tliat guilty contributory contends neg-

ligence as a matter of law. If plain- the evidence most favorable to tiff had disclosed the fact that had the means at hand where- repair, to make the unhesitatingly we would declare that *7 was guilty of such recovery. as would bar a repair very simple was and could have accomplished been in a few mo- only ments. It was nail one or two additional braces or to nail board to the bottom of the ladder which would prevent swinging it from wall. However, toward the prevented making was repairs by the absence of the nec- essary materials, then he had to use the ladder as it orwas abandon employment. his We do not think that use of the ladder was so imminently dangerous but what the could well find that a rea- sonably prudent man would attempted to use the ladder as it was rather than abandon employment. his

Appellant plaintiff’s contends that ease should not be determined solely upon testimony at trial appeal from which this was taken, by testimony but that he is bound his given at another trial testimony a deposition, under which was at variance with his testimony trial, at the because the unexplained contradictions were unexcused, citing in support thereof the case of v. Monroe Chicago & 249 Alton T. S. W. 644. That case holds that where plaintiff’s testimony it is shown that on a former trial is contradic tory given testimony subsequent trial, to his at a and the conflicts unexplained, testimony are his on one or the other occasion is ob viously false, and,, testimony probative therefore his is of no value in subsequent However, in trial. the later cases of Davidson v. Railroad, 169, 256 S. W. and Steele v. K. 257 C., 756, S. W. expressed has Supreme Court a different In view. those cases the although obvious held that was had court altered trial, yet testimony the second- his at to determine given testimony his before them as im what credence should previous hearing. peached by said at the what Was We therefore a prima we cannot determine .whether made hold that testimony by considering previous occasions, on even facie case explanation though of the contradictions. he offered no assigns permit- as error the action of the trial court in Appellant showdng pro- introduce evidence ting plaintiff to that defendant insurance, showing plaintiff’s dealings liability tected company. assignment is no in this There court that insurance attorney permitting plaintiff’s examine the court erred the trial concerning company. the insurance Neither dire on its voir plain- the examination of any objection at the trial to was there company name insurance ground of the upon tiff manner in injected case. The which examination into the Supreme Court. approved tbe been was conducted has only ob- (2d) At trial Schofield, 8 W. v. S. [Cazzell testimony the insurance name of jection wherein the made to the attempted of an was mentioned was this was evidence company testimony defend- to show that settlement, and that the offered ant, investigation, that there was making after determined objection objection liability. here, some That is waived and the made here was waived at trial.

Appellant’s assertion that it ivas error admit the evidence of concerning one witnesses the condition of the before the time when went to work.is not well founded. only objection trial of this nature was made at the was sus- objections overruled, court. Other tained were made presented assignment. are not begins Plaintiff’s instruction No. is under attack. with the following statement: defendant,

“It Friderichsen Floor and Wall *8 ordinary plaintiff Company, Tile to exercise care to furnish the a way getting reasonably up place safe of to and down from the where required by work, was the defendant to do his and he to exercise ordinary keep way reasonably in a condition, to such safe and care you find from the etc.” so evidence necessary support an outline of the essential facts to Then follows plaintiff and a plaintiff, direction to find verdict for for a verdict finding. required upon jury such This instruction the to find based shaky; that it was that foot of the ladder leaned: the rests the that facts, slippery; that “if were slick or reason such such reasonably safe, ladder was that a facts,” be that the not the likely slip using injured; same was and fall and person the to be foreman,'*over knew, plaintiff, defendant’s the the and that or the ordinary facts, of such care could have known and that exercise of plaintiff use ladder and assured him that the to the it directed required jury reasonably It the to find safe. that because of was ordinarily care failed to exercise such care defendant such facts ordinarily prudent persons would exercise under same ful and defendant, such failure of “if and that circumstances or similar slip directly plaintiff to and fall fail” caused you find did so it injured; plaintiff and that the was exe and to the ladder safety. It is contended that ordinary own care rcising guilty find jury permitted to defendant was instruction this way, jury a safe whereas the should provide failed to if it particular ladder only whether the to consider directed have been jury permits to find defend instruction reasonably safe; slippery, whereas, were slick rests foot liable if the ant only in this connection to consider directed have been should allegation that the ladder was shaky; loose and the instruction that require does jury not plaintiff to upon find relied safety, assurance of but rely upon assumes that he did such assur ance, right rely and that he had the assurance; to such require jury instruction does not the assurance, to find that any, negligently given. good practice It an not to merely principle instruction which declares abstract of law. This prelude instruction requirements includes a to the find specific lays issues in plaintiff, favor of which merely down the proposition abstract is the to or exercise dinary reasonably care to place furnish the in safe work, ordinary keep place to exercise care to reasonably safe condition. The vice of such an instruction is that allegations it does confine specific petition determining whether or ordinary not defendant exercised care. However, required this same everything to find that was to return a verdict. In view of this fact abstract of law jury. declaration could not misled [Drew Louis, etc., v. St. 293 W. only R. instruction not S. required find that the foot rests ladder were slick and slippery, required also a finding the ladder would shaky lean and that it was reason of all of such facts reasonably person ladder was not safe and using that a the same slip fall. true that the instruction did not require upon any find relied assurance safety negligently given. that such assurance was nor rely upon the safety, finding was not entitled to assurance of and a question properly jury. withheld from the We see justifies nothing in this instruction which the statement that as right rely had the sumes that relied or assurance *9 of the foreman. not in conflict with

This instruction is defendant’s instruction No. contributory negligence. issue 8, which of Plaintiff’s is plaintiff requires main to find that instruction exercis- safety. his ing ordinary care for own No. Defendant’s instruction plaintiff reasonably knew ladder not 8 tells that if probably and safe, and that the thereof was to would re- use reasonably exercising that a careful injury, man, and or- in an sult dinary conditions, have used ladder under care, not these In this the en- plaintiff could not recover. instructions are then tirely Furthermore, plaintiff’s it is not error for main consistent. to which a verdict omit essential of directs elements instruction properly by if negligence those elements are contributory submitted plea contributory negligence The of other instruction. is an 710 defense,

affirmative and in if affirmative this State it is sufficient an by any defense be submitted instruction. 3 plaintiff’s and de-

There is conflict between instruction No. no question 8, fendant’s instruction No. both of which submit the of contributory negligence. there is a conflict be- The statement that plaintiff for and an for defendant tween instruction instruction assignment question is an error. determined insufficient of The to be ap- If respondent’s is or not the instruction is erroneous. whether is, We pellant point it is out the are claims it his error. appellant’s concerned with the or not correctness incorrectness of instruction.

Appellant complains in giving plaintiff’s that the court erred in- upon any allegation struction No. because it not based is petition, theory introduces new into the ease and thus broad- they ens the issue. That told found for plaintiff prior and found from evidence and that at time claims, plaintiff from to have fallen the ladder he had disease disabilities, physical prior or and that such disease or. disabilities aggravated by or were made worse the fall from the then plaintiff aggravation defendant liable to the for all such of such prior injury brought The or defendant on out, condition. cross- plaintiff, injured examination before, that he had been and physical entirely contended that condition was not due to the undoubtedly fall the ladder. The right defendant show, if could, wholly condition was not at- fall, proper tributable for the court to direct the damages jury how should be ascertained find Should injected that issue. issue was into the case plaintiff. the defendant appel- eases cited plaintiff alleged lant are cases negligence where one act but sub- jury, pleaded mitted another to the or one set facts in avoidance proved They of a contract another. point. not in are alleged trial court in refusing committed error No. defendant’s instruction reads follows: you “The court instructs the cannot find the defend- anjr negligence ant guilty reason of the claim that the reported the condition to defendant’s foreman and that said foreman directed the use continue of the same and remedy assured him wtould its condition and that safety could use it with reasonable relied charge assurance and this from yoUr is withdrawn ’’ consideration. agree right We finding had no to base a of neg- *10 ligence promise the of the defendant remedy he would However, condition of the ladder. the the instruction attempts also to the withdraw of all evidence that from the consideration the foreman the continue the ladder. The directed to the of use determining right had a in to consider such evidence whether ordinary employee guilty or not exercised care. The is not of contributory negligence obey law if the as a matter of order danger appliance, to use a the is so imminent and defective unless obeyed reasonably person prudent obvious that a would not have the Hydraulic order. Plant, 941; Brick 288 S. [Brann v. Press W. Bros., Struckel v. Busch Sulzer 300 W. S. in Defendant’s 993.] 4 sought struction No. withdraw from the element which right the had a to consider.

Complaint is made the court modified defendant’s instruction No. 11. instruction, offered, That is as follows: instructs the charge plain-

“The court that the made against tiff the defendant of negligence negligence is one positive wrong therefore, presumed be is not to in this case. In words, may other recovery charge negligence be had aon of only charge when such preponderance, is, sustained greater weight of the credible evidence to the reasonable satis- of jury, faction charge made, that the is true as does not devolve disprove charge, but, rather, the defendant the law proof casts the burden respect upon plain- of tiff charge and such of pre- must be sustained ponderance, is, greater weight evidence to credible the reasonable satisfaction jury, If, stated. there- as above fore, you touching charge find negligence, evenly the evidence cha/i'Qe negligence against' truth as balanced that the {or your minds), fairly remains m doubt in after con- defendant sidering evidence, your verdict be for must the defendant.” (Italics ours.) language

The court struck out the near end of the instruction charge neg- reads “or as follows: as to truth ligence against the remains in in your doubt minds.” The defendant Supreme Court of Missouri considered this identical requested by give and held that it was not error to it in form Supreme subsequent defendant. The Court said: “The direction charge negligence against if ‘the truth as to your minds, fairly considering remains doubt in after evi- your dence, simply verdict must for the defendant’ states the previously charged.” converse of the ‘reasonable satisfaction’ In v. Prudential Fixture 289 S. W. view [Denkman compelled we are to hold that it would have been this decision requested. proper give the instruction as for the court does it was reversible not follow that error instruction as refuse court. requested as modified The instruction as *11 712 instructed,

given by very the clearly they court jury should the how proceed weigh upon question negligence. the of They evidence the charge were told that preponderance the must be sustained the greater weight or the of the evidence the satisfaction reasonable of jury; proof the upon plaintiff; that burden that the of Was the they if touching charge evenly found the evidence of the they balanced find for jury must the defendant. If the followed weighed the given, they correctly. instruction as the evidence adopt language court is not bound to attorney the of an in instruct- jury. ing the correctly if It sufficient instructs the upon all concerning any issues instruction has been asked. very happens often upon given that two instructions one issue are jury. judgment If both are correct the will not be reversed upon ground give that it was not both instructions. Upon hand, other if two such instructions are asked and one given, only judgment will if prop- not be reversed the issue is erly presented by given instruction.

Appellant contends that refusing the court erred in de- requested. as fendant’s No. It was as follows: you “The court instructs the that if find and believe from plaintiff you the evidence caused to fall —if that w'as find he solely fall, did slipping, so, because of his foot because of clay, upon condition or effect from upon either his shoes or ladder, you plaintiff rounds then are instructed that cannot your in this recover case verdict will be for the defendant.” ours.) (Italics

The court struck out the words which gave we have italicized and By doing the instruction as modified. so the court instructed the plaintiff solely that if was caused to fall because of effect clay shoes, plaintiff recover, then not could but re- fused to instruct that if solely was caused to fall clay upon because of the effect of ladder, the rounds of the then Appellant’s not recover. could contention is that if the slippery merely clay ladder slick and because Respondent defendant was liable. then not contends that proper to refuse the instruction because it confusing allege misleading; not did slipped answrer. clay upon steps, because of effect that the evidence showed rungs had general use the ladder made the slick whether clay not; they upon them or other people had used the provided. steps way there was no other We are of given opinion should have requested. the instruction been Respondent pointed has out wherein the confusing instruction is quite plain. we it is misleading, plaintiff’s think or evi- plant worked dence was to those who tlie effect upon the ladder. clay deposit get wet their shoes and If al- clay which was believed from the evidence that the ready upon clay upon slick, ladder made but that. the wet in- any, did not shoes, the time he used the at risk, could have found under the modified crease *12 contrary law. The instruction; be to but such a verdict would usually ladder was due to clay fact found that wet by which done. was a risk incidental the method the work was It Nor plaintiff. employment to the and was assumed rungs if the slick condition make difference dry clay the ladder. This due dust which settled to employment. Respondent claims to the was also a risk incidental fully risk which assumption with that this instruction deals agree No. 7. We do not covered defendant’s instruction merely No. 7 this Instruction tells the contention. injury

they and believe from the evidence that find work, ordinary and usual hazards to the incident result appreciated by plaintiff, and same were understood and that the ordinary intelligence, to man of open and obvious were and general recover. In addition this in- then could not to struction, was entitled to have such risks as were of law withdrawn from by plaintiff assumed as matter the con- jury. sideration failing is that the court erred in defendant’s contended theory No. 16. instruction was drawn

instruction This right rely upon reasonable and to use the master had ordinary adjust- ordinary safety and to make such care for his own danger ap- might changes as to obviate ments or knowledge, and instructed which he had preciated and of plaintiff could, evidence that with- from the believed slight and with effort himself, unnecessary inconvenience out ordinarily defects and that an adjusted minor or remedied such have working such condition would have made workman, under careful and defect, care- such adjustments or remedied failed, reason of his so, do and lessly negligently prin- could not recover. The injured, then he ivas failure drawn should been sub- instruction upon which the ciple for the court to refuse the was not error jury, but it mitted confusing phrase- the awkward and because instruction particular retried, it is not must be case ology. As present form, next trial in its we be offered at will analyze the defects the instruction. necessary think do remanded, C., Lee, cause judgment is reversed concurs. opinion by C., is here- foregoing Barnett,

PER CURIAM:—The Trimble, concur, except All adopted opinion the court. as the 3., P. absent. Holliway Others, Re

P. I. W. Murphy, Appellant, v. W. spondents. City Appeals. April 1, 1929. Court of Kansas