178 P. 747 (Kan. 1919), 21,883, Benson v. Bush

Docket Nº:21,883
Citation:178 P. 747, 104 Kan. 198
Opinion Judge:WEST, J.:
Party Name:C. H. BENSON, Appellee, v. B. F. BUSH, as Receiver of THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
Attorney:W. P. Waggener, Walter E. Brown, G. L. DeLacey, all of Atchison, and O. H. Bentley, of Wichita, for the appellant. John W. Adams, and S. S. Hawks, both of Wichita, for the appellee.
Case Date:February 08, 1919
Court:Supreme Court of Kansas
 
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Page 747

178 P. 747 (Kan. 1919)

104 Kan. 198

C. H. BENSON, Appellee,

v.

B. F. BUSH, as Receiver of THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No. 21,883

Supreme Court of Kansas

February 8, 1919

Decided January, 1919.

Appeal from Sedgwick district court, division No. 2; THORNTON W. SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPENSATION ACT--Injuries--Agent Lighting Fire with Kerosene. The plaintiff, as station agent of the defendant, was not, while attempting to start a fire in the depot stove, engaged in interstate commerce.

2. SAME--Accident Incident to Employment. His attempt to start a fire by the use of kerosene, which he supposed was signal oil, did not thereby add to his employment any peril outside thereof.

3. SAME. The injury arose out of and in the course of his employment within the meaning of the workmen's compensation act.

W. P. Waggener, Walter E. Brown, G. L. DeLacey, all of Atchison, and O. H. Bentley, of Wichita, for the appellant.

John W. Adams, and S. S. Hawks, both of Wichita, for the appellee.

OPINION

Page 748

WEST, J.:

The defendant appeals from a judgment recovered by the plaintiff for injuries caused by burns received in attempting to start a fire in the depot where the plaintiff was employed. The action was under the workmen's compensation act.

At the station of Ray, in Pawnee county, the plaintiff began work as relief agent, and in trying to start a fire with what he supposed was signal oil, but which was afterwards found to be kerosene, he was burned. The answer alleged that, if the plaintiff was injured, it was not by reason of any accident arising out of and in the course of his employment, but was due to the explosion of a can of kerosene which he himself poured upon the live coals, and that he was injured because of the new and added peril caused thereby, to which he carelessly exposed himself, and that the act was outside of his employment. It [104 Kan. 199] was further alleged that the injury occurred while the plaintiff was employed by the defendant in interstate commerce, and that his remedy, if any, was under the federal employers' liability act.

The court instructed the jury that the injury was an accident that occurred in the course of plaintiff's employment, but that it remained for them to determine whether it arose out of the employment, which they were told meant that the accident was in some sense due to the employment and resulted from an accident or risk reasonably incident to that employment, and a risk which might have been contemplated by a reasonable person entering the employment, as incidental to it; that if the injury was due to an act of the plaintiff's which added a new or additional risk to his employment he could not recover. The jury were also instructed that the question of whether the plaintiff and defendant were engaged in interstate commerce, as a defense, was not before them for their consideration.

They answered special questions to the effect that the plaintiff was not injured by pouring kerosene on the fire, or on live coals; that the explosion was caused by fire from a lighted match coming in contact with explosive matter; that the liquid in the can, which the plaintiff poured in the stove, was kerosene; that a former agent furnished the kerosene; that the defendant had a rule forbidding its use...

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