Biggs v. The Consolidated Barb-Wire Company

• Decision Date: 11 February 1899
• Docket Number: 11070
• Parties: W. P. BIGGS, Administrator of the estate of Leigh Walter Howell, deceased, v. THE CONSOLIDATED BARB-WIRE COMPANY
• Court: Kansas Supreme Court

56 P. 4

60 Kan. 217

W. P. BIGGS, Administrator of the estate of Leigh Walter Howell, deceased, v. THE CONSOLIDATED BARB-WIRE COMPANY

No. 11070

Supreme Court of Kansas

February 11, 1899

Decided January, 1899.

Error from Douglas district court; SAMUEL A. RIGGS, judge.

Judgment reversed.

R. E Melvin, for plaintiff in error.

W. W Nevison, for defendant in error.

OPINION

SMITH, J.:

This was an action for the recovery of damages by reason of the death of Leigh Walter Howell, which was caused, as is alleged, by the wrongful act, neglect and default of the defendant in error, the Consolidated Barb-Wire Company. On December 2, 1897, an amended petition was filed in the cause to which a general demurrer was interposed by the defendant. This demurrer was sustained by the court, and the plaintiff below electing to stand thereon, judgment was rendered in favor of the defendant. The question for our consideration is whether the amended petition states facts sufficient to constitute a cause of action.

It is alleged in said amended petition that the plaintiff, W. P. Biggs, on July 26, 1897, was duly appointed administrator of the estate of Leigh Walter Howell, deceased; that the defendant is a corporation and had for a long time operated a wire-nail and barb-wire plant on the south bank of the Kansas river at Lawrence; that said plant is run by water power, and that the power is transmitted to said wire mill and plant about 125 feet by a certain shaft owned and controlled by the defendant; that said shaft is about six inches in diameter, and is located about fifteen or eighteen feet above the water, supported on timbers which are about eighteen inches apart, said timbers being supported by a stone buttress or pier; that about twelve or eighteen feet west of said buttress or pier is a collar or coupling about eight inches in diameter around said shaft, and in the outer rim of said collar or coupling is a bolt or set-screw which projects out some four or five inches from the outer rim of the collar or coupling; that the shafting and connections and attachments are open and exposed and in no manner covered or enclosed; that the shaft revolves at the rate of about 100 to 150 revolutions per minute; that on the 21st day of April, 1897, said Leigh Walter Howell was fishing and playing near to and under said shaft, and in attempting to climb up from below, on a ladder for that purpose built by the defendant, to the timbers on either side of said shaft, the aforesaid bolt or set-screw which projected from the collar or coupling on said shaft caught in the back of his coat, and he was whirled around said shaft and against said timbers with irresistible force and killed; that the wire company was guilty of gross carelessness toward the deceased in that, through its officers, it had actual notice of the faulty construction of said machinery, and that at the place of the accident it was unsafe and dangerous; that it was guilty of gross carelessness toward the deceased in not enclosing or boxing the collar, coupling, and screw, and in leaving the same exposed and open, and further in allowing the set-screw or bolt to project four or five inches from the rim of the collar or coupling, and in not boxing it; and was careless in leaving the machinery and timbers supporting the same, and the immediate surroundings, which were attractive to children, open and exposed, wholly unguarded and unfenced; that the deceased could not see the bolt or set-screw by reason of the shaft revolving so fast as to render it invisible; that the place where plaintiff's intestate was killed and the machinery and timbers supporting the same and the surroundings were attractive to children; and that children, and particularly boys, were in the habit of resorting there for the purpose of amusement, and men and boys were in the habit of climbing about on the timbers which supported the shaft for the purpose of fishing and. playing, and that the company had notice of such facts; that the defendant company knew that the said machinery was unsafe and dangerous, for the reason that other persons had been caught by said screw; that said shaft is built across what would be New Hampshire street, if projected ten feet into the water; that said dangerous machinery was left in an open and exposed place, unfenced and unprotected, and in a place attractive to children; that at the time of the accident, April 21, there were no sign-boards on or about said premises, but previous to that time there had been, and the same had been put up and erected by defendant company, but that since April 21 the defendant had placed and erected danger-boards on and around said premises; that Leigh Walter Howell, the deceased, was a boy of fourteen years of age, intelligent, healthy and promising at the time of his death; that he left a father, brother and sister surviving him.

All the allegations of the petition being admitted,...