Brower v. Timreck

• Decision Date: 07 February 1903
• Docket Number: 12,923
• Citation: 71 P. 581,66 Kan. 770
• Parties: H. A. BROWER v. CHARLES TIMRECK
• Court: Kansas Supreme Court

71 P. 581

66 Kan. 770

H. A. BROWER v. CHARLES TIMRECK

No. 12,923

Supreme Court of Kansas

February 7, 1903

Decided January, 1903.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgment affirmed.

Frank P. Sebree, W. F. Evans, and J. D. Wendorff, for plaintiff in error.

C. W Trickett, and C. R. Cooksey, for defendant in error.

OPINION

Per Curiam:

Charles Timreck sued H. A. Brower in the Wyandotte county district court on account of an injury received by him while in the employment of defendant assisting in the operation of a stave-planer, the liability of defendant being predicated upon negligence in failing to provide sufficient light to enable the plaintiff to avoid injury in not warning plaintiff of the dangerous character of the machinery, and in setting plaintiff to cleaning out shavings from the machinery without stopping it. The defendant answered with a general denial and allegations of contributory negligence and assumption of risk. A jury trial was had, resulting in a verdict for plaintiff for $ 2000, upon which the court rendered judgment, which the defendant now seeks to reverse. No special findings were made. Under the general denial the defendant sought to show that plaintiff was not employed by defendant, but by one W. W. Weir, who was an independent contractor, for whose negligence defendant was not liable, and the chief contention of plaintiff in error is that there was no evidence to sustain a finding to the contrary.

There was evidence that the defendant, H. A Brower, was the owner and operator of a cooperage plant, doing business under the name of the "Kansas City Cooperage Company"; W. C. Blondell was his general superintendent; in the building in which the plant was located there was conducted by W. W. Weir, either as a foreman of the defendant, as plaintiff claims, or as an independent contractor, as defendant claims, a special department; it was operated by means of machinery owned by defendant and forming a part of the plant, run by the defendant's engines the same as his other machinery; it was not in any separate room or in any way divided off from any other department; on Friday, September 28, 1900, plaintiff, then twenty-two years of age, applied to Weir for work and was employed on that day, and on the next day, and on the following Monday, in hauling staves to the planer the machine on which he was afterwards injured; he did not work after Monday until the succeeding Friday, when he was again employed and set to work running staves through the planer; this planer had a table some 3 feet high, about 12 inches wide and 34 inches long, the staves being fed from one end to the other; it was furnished with two sets of knives, one set for planing the top of the staves being above the table and about a foot from the end from which the feeding was done, the other for planing the under side of the staves, located under the table about a foot from the other end; the two sets of knives could be operated together or one set could be operated separately; when the planer was at work the shavings would accumulate under the table and had to be cleaned out; the person operating the planer and the person receiving the planed staves were instruct d to clean out the shavings, each from his own end; on Friday plaintiff fed the staves through the planer, one Sid Van Dine receiving them at the other end; on Saturday morning the positions of the two were reversed, Van Dine feeding and plaintiff receiving; the planer was located in a part of the room where there was but little light; plaintiff did not know that there were any knives under the table; his attention had not been called to them and he had not seen them; he had been working about thirty or forty minutes when it became necessary to clean out the shavings; plaintiff had reached under the...