Allison v. Stivers

• Citation: 81 Kan. 713,106 P. 996
• Decision Date: 12 February 1910
• Docket Number: 16,319
• Parties: JOHN T. ALLISON, Appellee, v. HARVEY STIVERS, Appellant
• Court: United States State Supreme Court of Kansas

106 P. 996

81 Kan. 713

JOHN T. ALLISON, Appellee, v. HARVEY STIVERS, Appellant

No. 16,319

Supreme Court of Kansas

February 12, 1910

Decided January, 1910.

Appeal from Neosho district court; JAMES W. FINLEY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Injury to Employee--Duty of the Master--Assumption of Risk--Contributory Negligence. The principles that a master must furnish his employee reasonably safe instrumentalities with which to work, that the employee may assume the duty has been discharged, and that opportunity to observe does not of necessity charge the employee with knowledge of defects and danger, applied in a case in which a master required a carpenter to discard a ladder of his own choice and to use a defective scaffold built by brick masons who had previously been engaged in work on the same building.

C. S Denison, for the appellant.

H. P. Farrelly, T. R. Evans, and B. F. Shinn, for the appellee.

OPINION

BURCH, J.:

This is an appeal from a judgment rendered in a personal-injury case. The appellant was a contractor engaged in the erection of a roundhouse for the Atchison, Topeka & Santa Fe Railway Company. The work was conducted under the supervision of a general foreman, and the appellee was a carpenter. In the prosecution of the work brick masons and their helpers erected a scaffold for their own use, which was left standing after it had subserved its purpose. The appellee was directed by the foreman to put on some drop siding over a window close by the scaffold, and commenced to build a scaffold of his own to enable him to reach the place. He required a scaffold higher than the one the brick masons had left. He was using a ladder for his purpose when the foreman came along and ordered him to take the ladder down, get up on the old scaffold to nail the necessary timbers, and get the work done. The order was obeyed, and while the appellee was driving the second nail the scaffold fell and he suffered the injury for which he recovered damages. The appellant supplied material for the workmen, who built their own scaffolds as they needed them. The foreman did not superintend the building of the brick masons' scaffold and was ignorant of its condition. The appellee had been about the place while the brick masons were at work, saw them build some scaffolds, might have seen them building the scaffold in question, and saw them working upon it, but he knew nothing of its construction, and when he attempted to use it he saw nothing wrong with it.

The appellant argues he performed his duty when he furnished material to workmen who from time to time as the work progressed erected their own scaffolds in their own way; that he did not know and was under no duty to know whether the scaffold was safe; that the appellee was a fellow servant of those who built the defective scaffold; that he assumed the risk of its safety, and that he was guilty of contributory negligence in using it in its defective state. Numerous cases are cited in which these contentions have prevailed, but they need not be discussed. They throw no light upon this controversy.

This is the ordinary case of a master who provides his employee with an unsafe instrumentality with which to prosecute the work. The brick masons' scaffold took the...