Davis v. The City of El Dorado

• Citation: 267 P. 7,126 Kan. 153
• Decision Date: 05 May 1928
• Docket Number: 28,091
• Parties: W. M. DAVIS, Appellant, v. THE CITY OF EL DORADO, Appellee
• Court: United States State Supreme Court of Kansas

267 P. 7

126 Kan. 153

W. M. DAVIS, Appellant, v. THE CITY OF EL DORADO, Appellee

No. 28,091

Supreme Court of Kansas

May 5, 1928

Decided January, 1928

Appeal from Butler district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Assumption of Risk by Servant--Injury from Falling Limbs While Trimming Trees. A healthy, mature able-bodied workman employed by a city to trim trees in a park assumes the risk of injury caused by the falling of branches which he cuts from trees where he is furnished a ladder to assist him in climbing trees and a saw with which to cut off the branches, but is not furnished any other tool or implement; where no rule is prescribed for him and no instructions are given to him; and where, before he commences to work, he can see the danger from branches falling to the ground.

2. MUNICIPAL CORPORATIONS--Notice of Injury--Statute Applicable to Workmen. Such a workman as is described in the first paragraph of this syllabus cannot recover from the city damages for injuries sustained by him in cutting a branch from a tree where he does not file with the city clerk a written statement giving the time and place of the happening of the accident and injury received and the circumstances relating thereto within three months after the happening of the accident.

3. SAME--Notice of Injury--Statute Applicable to Workmen. Section 12-105 of the Revised Statutes requires an employee of the city, injured through negligence for which the city is liable, to give notice of such injury if he desires to recover from the city.

4. SAME--Notice of Injury--Statute Not Unconstitutional. Section 12-105 of the Revised Statutes requiring notice of injury to be given the city within three months after the injury occurs does not violate any provision of the state or federal constitution.

R. T. McCluggage and Stanley Taylor, both of El Dorado, for the appellant.

F. J. Leasure, of El Dorado, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff, an employee of the defendant city, commenced this action to recover damages for personal injuries sustained by him while engaged in cutting branches off trees in a park owned by the city. Judgment was rendered in favor of the defendant on its demurrer to the plaintiff's petition. The plaintiff appeals.

The petition, without its exhibits, is set out in eleven printed pages of the abstract. The defendant in its brief fairly sets out the facts alleged in the petition as follows:

"Plaintiff went to work for defendant on March 12, 1926, and was, at such time, ordered by defendant's foreman to cut dead limbs out of trees in defendant's public amusement park. Plaintiff was furnished with a saw and with a ladder which was not long enough to reach the limbs to be cut, but was not furnished with tree climbers, rope or safety belt. No rules or regulations were prescribed for the prosecution of the work and no system of warning was provided.

"Plaintiff worked at trimming trees with the tools provided and under conditions stated, without promise or inducement, until March 15, 1926, when plaintiff climbed a tree part way by use of a ladder, and part way without a ladder, and took a sitting position in the fork formed by the trunk of the tree and the limb to be sawed off. Plaintiff sawed off the limb, and in falling the ends of the limb hit the roof of a pump house which stood fifteen feet above the surface of the ground and at a distance of about twenty feet from the tree, and when the ends of the limb so struck said pump house it caused the limb to instantly rebound. The recoil of the limb caused by striking the pump house crushed plaintiff's leg between the sawed butt of the limb and the trunk of the tree, and the leg had to be amputated.

"Defendant's foreman was informed of the details and circumstances of the accident thirty minutes after it occurred, and within ninety days from the time of the accident the city manager and officers of the city were informed of the details and circumstances of the accident. The defendant paid certain expenses incurred by plaintiff by reason of the accident from the time of the accident to August 1, 1926.

"On October 5, 1926, plaintiff filed with the city clerk a written notice of the injury and claim for damages. The plaintiff's claim for damages was rejected.

"That defendant was negligent in that it did not furnish plaintiff with a safe place to work or with proper tools, and did not provide proper rules and regulations for the conduct of the work, and that such negligence was the proximate cause of plaintiff's injury."

The defendant urges that the petition failed to state a cause of action because the plaintiff assumed the risk of injury by the accident in which he was hurt, and because notice of the accident and injury was not given to the defendant by the plaintiff within three months as required by section 12-105 of the Revised Statutes.

1. Did the plaintiff assume the risk of being injured by the falling branch which he had cut from the tree? The petition alleged that prior to injury the plaintiff was an able-bodied man, in good health, and was thirty-seven years old. The work in which he was engaged was dangerous. He knew that as well as any other person. He was furnished with simple tools with which to do that work, a ladder to assist him in climbing the trees, and a saw with which to cut off branches of the trees. He knew that if he fell he was liable to be seriously injured. He knew that if a large falling branch of a tree struck him, serious injury might result. There was nothing in the petition to indicate that he in any way objected to or protested against doing the work with the tools furnished him. There was no promise to furnish other or different tools. Neither the saw nor the ladder was defective. Neither of those tools contributed to his injury. Defective tools did not cause his injury nor contribute to it. He was injured by an accident caused by a danger incident to the work in which he was engaged.

In Spear v. City of Wichita, 113 Kan. 686, 216 P. 305 the city was held liable under conditions somewhat similar to those existing in this case, but that case can be distinguished from the present one in the following particular: There the branch of the tree to be taken off had been partly sawed off on the under side, but the workman who was injured did not see or know that the branch had been partly cut off before he commenced working on it. That contributed to the accident which injured him. Here the plaintiff knew all about the conditions surrounding his work because they were open to his inspection and visible to anyone who looked. ...