31 P. 1002 (Kan. 1893), The Union Pacific Railway Company v. Monden

Citation:31 P. 1002, 50 Kan. 539
Opinion Judge:GREEN, C.
Party Name:THE UNION PACIFIC RAILWAY COMPANY v. SUSAN A. MONDEN, as Administratrix of the estate of John R. Monden, deceased
Attorney:A. L. Williams, and Chas. Monroe, for plaintiff in error: Riggs & Nevison, for defendant in error:
Case Date:January 01, 1893
Court:Supreme Court of Kansas

Page 1002

31 P. 1002 (Kan. 1893)

50 Kan. 539

THE UNION PACIFIC RAILWAY COMPANY

v.

SUSAN A. MONDEN, as Administratrix of the estate of John R. Monden, deceased

Supreme Court of Kansas

January 1, 1893

Error from Douglas District Court.

ACTION by Susan A. Monden, administratrix of the estate of John R. Monden, against the Union Pacific Railway Company, for causing the death of plaintiff's intestate. Verdict and judgment for plaintiff, June 20, 1889. The defendant Company comes to this court. The opinion states the material facts.

Judgment reversed and trial granted.

A. L. Williams, and Chas. Monroe, for plaintiff in error:

It was decided by this court, in the case of Railway Co. v. Peavey, 34 Kan. 472, that if an employe knows that the materials with which he works are defective, and he continues his work without objection and, without being induced by his employer to believe that a change will be made, he will be deemed to have assumed the risk of such defects, and cannot recover for an injury resulting therefrom. That principle of law was quoted by this court as being one of the rules of the common law still in force, and there are no decisions to the contrary. It is the law everywhere, and is applicable to the facts of this case.

The attention of the court is called to the case of Rush v. Missouri Pacific Railway Co., 36 Kan. 129; and it is submitted that the decision in that case settles this one in favor of the railroad company beyond any question. There a man had been killed by being run over by a car while he had his foot caught in an unblocked switch. The district court directed a verdict for the defendant and rendered judgment in its favor, and that judgment was sustained by this court. The question in that case was, whether the company was negligent in not blocking its switch. The plaintiff in that case had been working in the yard for about 2 1/2 months prior to the accident. None of the switches in that yard, or in any of the other yards of that company, were blocked; and the court decided that, as to the plaintiff, the company was not negligent in failing to block its switches, and that the plaintiff assumed whatever risk was occasioned by such failure. That case is almost exactly like the present one. Reference is also made to the case of H. & St. J. Rld. Co. v. Kanaley, 39 Kan. 1.

The decisions of our supreme court being so strong upon this question of the assumption of risk, it is hardly necessary to refer to cases outside; and, with the exception of two or three cases, citations only will be made. The cases in which the facts are most nearly like the present case are Mo. Pac. Rly. Co. v. Somers, 9 S.W. 741, and Lovejoy v. B. & L. Rld. Co., 125 Mass. 79.

For authorities upon the principle that when an employe knows that the appliances with which he works are defective, and continues his work without objection, he will be deemed to have assumed the risk of such defects, and cannot recover for an injury resulting therefrom, see the following cases: Smith v. Winona & St. Paul Rld. Co., 43 N.W. 968; Tuttle v. D. G. H. & M. Rly. Co., 102 U.S. 189; Kelley v. C. M. & St. P. Rld. Co., 53 Wis. 74; Naylor v. C. & N. W. Rly. Co., 5 Am. & Eng. Rly. Cases, 460; Pierce on Railroads, 379; Hawk v. Pa. Rld. Co., 31 Am. & Eng. Rly. Cases, 268; Wormell v. M. C. Rld. Co., 31 id. 272; N. & W. Rld. Co. v. Jackson, 8 S.E. 370; Kennedy v. Pa. Rly. Co., 17 A. 7; Brossman v. L. V. Rld. Co., 6 id. 226; P. & R. Rld. Co. v. Hughes, 33 Am. & Eng. Rly. Cases, 348; I. & St. L. Rly. Co. v. Watson, 33 id. 334; Naylor v. N. Y. C. & H. R. Rld. Co., 33 F. 801; Ladd v. N. B. Rld. Co., 119 Mass. 412; Wharton on Negligence, 214; Sullivan v. India Mfg. Co., 113 Mass. 396; Fleming v. St. P. & D. Rly. Co., 6 N.W. 448; Gibson v. Railroad Co., 63 N.Y. 449; Wells v. B. C. R. & N. Rld. Co., 9 N.W. 369.

The court erred in refusing to give the sixth instruction requested by the defendant. That instruction is as follows:

"If the employe sustaining an injury through deficient or improper machinery furnished by his employer has the same knowledge or means of knowledge of the deficiencies or improprieties referred to as his employer, he cannot sustain an action for the injury, but will be held to have voluntarily assumed all the risk of the employment incurred by the defective or improper machinery used in the work."

This instruction was warranted by the decision of this court in the Rush case; and upon the question that if the employe has the same knowledge or the same means of knowledge of a defect that the employer has he assumes the risk of it, see Wright v. Railway Co., 25 N.Y. 562, 566; Hayden v. Manufacturing Co., 29 Conn. 548; Pierce on Railroads, 379.

Riggs & Nevison, for defendant in error:

"The master is not bound to have the instrumentalities of his business absolutely safe, but he is bound to have them as safe as ordinary care on his part can provide, and this extends not only to the original act of providing them, but also to keeping them in repair." Railroad Co. v. Moore, 29 Kan. 644; Railroad Co. v. McKee, 37 id. 592; Railroad Co. v. Irwin, 37 id. 709. See, also, Railroad Co. v. Morgan, 43 id. 1; Wood, Mas. & S., § 359.

"The measure of the phrase 'ordinary care,' and of the master's duty, is to be estimated from the nature of the implement, the use to which it is to be devoted, and the consequences to the servant in case it should prove defective, and therefore is a question of fact in each case for the jury." Wood, Mas. & S., §§ 329, 359; Fletcher v. Railroad Co., 1 Allen, 9; Railroad Co. v. Ogier, 35 Pa. 60. See, also, Hough v. Railroad Co., 100 U.S. 213, 217; B. & O. Rld. Co. v. Rowan, 104 Ind. 94; Snow v. Railroad Co., 8 Allen (Mass.), 441; Patterson v. P. & C. Rld. Co., 76 Pa. 389; Stackus v. N. Y. C. &c. Rld. Co., 79 N.Y. 464; Hartadner v. H. R. R. Br. Co., 80 id. 622; Payne v. Troy & Bost. Rld. Co., 83 id. 572.

In the case of Railroad Co. v. Peavey, 34 Kan. 472, the court held "that the plaintiff had full knowledge of all these things," and which is not true of Monden. He had never been over this branch before, and the situation as he knew it on the other branches would have warranted him in resting under the belief that the junctions were in some way protected by the situation or by markers, and it was for the jury to say how far he was bound to know, or suspect, by going over the branch that morning, or from his experiences on the other branches.

In the case of Rush v. Railroad Co., 36 Kan. 129, the court finds that the guard rails were not different from any other of its guard rails in its 5,000 miles of track, and that O'Conner had...

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