64 P. 615 (Kan. 1901), 11,912, Walker v. Scott

Docket Nº:11,912. [*]
Citation:64 P. 615, 67 Kan. 814
Opinion Judge:CUNNINGHAM, J.:
Party Name:ALDACE F. WALKER et al., etc., v. L. G. SCOTT
Attorney:A. A. Hurd, O. J. Wood, and W. Littlefield, for plaintiffs in error. J. W. Deford, and W. A. Deford, for defendant in error.
Judge Panel:CUNNINGHAM, J. All the Justices concurring.
Case Date:April 06, 1901
Court:Supreme Court of Kansas

Page 615

64 P. 615 (Kan. 1901)

67 Kan. 814

ALDACE F. WALKER et al., etc.,



No. 11,912. [*]

Supreme Court of Kansas

April 6, 1901

Decided July, 1903.

Error from court of appeals, southern department; A. W. Dennison, B. F. Milton, and M. Schoonover, judges.

Judgment reversed.



PERSONAL INJURIES -- Assumption of Risk. A servant assumes the ordinary risks of his employment in cases where its dangers are open to common observation and are as fully known to him as to his employer, and where he is as capable of knowing and measuring the dangers of such employment and is not induced to continue in the work by any promise of betterment or indemnity from his employer. In such a case the servant cannot recover from his employer damages for any injury that may come to him in the course of his employment.

A. A. Hurd, O. J. Wood, and W. Littlefield, for plaintiffs in error.

J. W. Deford, and W. A. Deford, for defendant in error.

CUNNINGHAM, J. All the Justices concurring.



The defendant in error brought an action in the district court of Osage county against the plaintiffs in error to recover damages on account of personal injuries. The plaintiffs in error, who as receivers were operating the Atchison, Topeka & Santa Fe railroad, found it necessary to dig a trench on the south side of the track, between it and the Marais des Cygnes river, about a mile east of Quenemo, for the purpose of riprapping the bank in order to prevent the river from washing away the road-bed and track. The work had progressed some three or four days before [67 Kan. 815] the defendant in error entered into the employment of the plaintiffs in error to dig in such trench, but the trench had been excavated only to a depth of two or three feet at that time. He commenced work on the 21st day of September, 1895, and continued at such work until the 9th day of October, when he was injured. At that time the trench was from nine to twelve or thirteen feet deep. The tools with which he worked were the ordinary pick and shovel. The soil through which the trench was dug was a sandy loam of a dark gray color. Defendant in error was about thirty-five years old, in good health, of ordinary intelligence, and possessed the ordinary faculties of sight and observation. Prior to entering the employment of the receivers he had worked some at quarrying stone, mining coal, and digging wells, and possessed information which would ordinarily be secured by one under those conditions. He was given no particular instructions as to what to do, when he hired to the receivers, except that he was wanted to dig in the trench with the other men. There were some nine or ten other men employed on this work. The work was in charge of a foreman named Bell for a few days, when another man, who was supposed to know more about the work in hand, was sent to take charge. No effort was made at any time by shoring or otherwise to prevent the caving in of the trench. No demand was made by the plaintiff at any time that any precautions be taken to that end or promises...

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