71 P. 232 (Kan. 1903), 12,794, The City of Emporia v. Kowalski

Docket Nº:12,794
Citation:71 P. 232, 66 Kan. 64
Opinion Judge:GREENE, J.:
Attorney:J. Harvey Frith, and Kellogg & Madden, for plaintiff in error. Buck & Spencer, and Lambert & Huggins, for defendant in error.
Judge Panel:GREENE, J. All the Justices concurring.
Case Date:January 10, 1903
Court:Supreme Court of Kansas

Page 232

71 P. 232 (Kan. 1903)

66 Kan. 64




No. 12,794

Supreme Court of Kansas

January 10, 1903

Decided January, 1903.

Error from Lyon district court; W. A. RANDOLPH, judge.

Judgment affirmed.



1. MASTER AND SERVANT -- Duty of Master. It is the duty of the master to provide for his employees a safe place to work, including structures and surroundings, and safe and reasonably suitable machinery, tools, implements and appliances with which to work, and the employee may enter upon the discharge of his labor assuming that these duties have been performed.

2. MASTER AND SERVANT -- Electric-light Poles -- Evidence of Defects. Where injury results from the falling of an electric-light pole belonging to the city, occasioned by rottenness beneath the surface of the ground, evidence of the condition of other poles which have been in the ground the same length of time, but taken up six months after the accident and exposed to the atmosphere six months before the examination, is competent as tending to show the general condition of the poles in use by the city at the time of the accident.

3. MASTER AND SERVANT -- Assumption of Risks. The ordinary risks incident to the business assumed by an employee are those only which occur after the due performance by the master of those duties which the law imposes on him.

J. Harvey Frith, and Kellogg & Madden, for plaintiff in error.

Buck & Spencer, and Lambert & Huggins, for defendant in error.

GREENE, J. All the Justices concurring.


[66 Kan. 65] GREENE, J.:

Anton Kowalski recovered judgment against the city of Emporia for injuries sustained, while an employee of the city, by the falling of an electric-light pole, from which judgment the city prosecutes this proceeding.

The city owned an electric-light plant and Kowalski was one of its employees. His duties appear to have been to climb certain of

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its electric-light poles, to which were attached cross-arms and lamps, clean the lamps and put in new carbon, and to report any defects in the wire, poles, or lamps. He usually completed his work in the forenoon of each day. The remainder of the day he spent about the engine-room carrying away ashes, cleaning the engine, and performing such other duties as were required of him. While at the top of the pole in question, replacing the carbon, the pole, which had become rotten in the ground, fell with him, crushing his leg.

The negligence charged against the city is that it allowed its electric-light poles to remain in the ground until they became decayed and rotten at the base, below the surface of the ground, and thus become dangerous to the lives of its employees whose duty it was to climb such poles for the purpose of cleaning the lamps and replacing the burned-out carbons. It is contended by the city that it was a part of the duty of the plaintiff to inspect the electric-light poles and report their condition to the superintendent; that [66 Kan. 66] plaintiff neglected to perform such duty with respect to this pole; that the city was not aware of such defect, and, therefore, his injury was the result of his own negligence. Plaintiff denied that his duty, with respect to these poles, was...

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