Harris v. Railway Express Agency
| Decision Date | 07 December 1949 |
| Docket Number | No. 3911.,3911. |
| Citation | 178 F.2d 8 |
| Parties | HARRIS v. RAILWAY EXPRESS AGENCY, Inc. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jacob A. Dickinson and David Prager, Topeka, Kan. (Edward Rooney, Topeka, Kan., was with them on the brief), for appellant.
Thomas M. Lillard, Topeka, Kan. (O. B. Eidson, Philip H. Lewis, and James W. Porter, Topeka, Kan., were with him on the brief), for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
This action by appellant, Floyd Harris, was brought in the District Court of Shawnee County, Kansas, to recover damages for personal injuries. The case was removed to the United States District Court for the District of Kansas, First Division. An answer was filed. The depositions of the plaintiff, his wife, and his brother-in-law were taken and filed in court. Thereafter a motion for summary judgment was made by defendant. Upon the hearing of this motion, the parties stated to the court that with the exception of the issue as to the nature of the relationship between the plaintiff and the defendant at the time plaintiff was injured, as alleged in the complaint, there were no material facts about which there was any substantial controversy between the parties. The court, thereupon, sustained the motion, and judgment was entered for the defendant, and this appeal followed.
While a number of assignments of error are urged for reversal, we think the disposition of the appeal depends upon the answer to two questions: First, was plaintiff an emergency employee, and, second, if so, were there acts of negligence pleaded which would make defendant liable to such an employee.
On a motion for summary judgment, all facts of the complaint well pleaded stand admitted.1 On a consideration of such a motion, the court not only considers the allegations of the complaint but also all facts shown by depositions and affidavits concerning which there can be no dispute.2
The material facts of the complaint are that appellant procured the Railway Express Agency, Inc., the appellee, to deliver a trunk, weighing in excess of 230 pounds, to himself at 2115 Virginia Street, Topeka, Kansas; that around noon, September 14, 1946, one of appellee's trucks stopped in front of the above address with the trunk aboard; that because of the weight thereof, it was impossible for one man to unload it; that this appellee knew, or by the exercise of reasonable care should have known, at the time the trunk was dispatched; that the truck was not equipped with skids, pulleys, or with any other appliances to make it possible to unload, with safety, to the persons unloading it; that upon arrival of the trunk at appellant's house, the driver, acting within the scope of his employment and for appellee's benefit, informed appellant that it would be impossible for him alone to unload the trunk, and asked appellant to assist him; that in response to such request, appellant started to assist appellee's driver, and in so doing was thrown to the ground by the weight of the trunk, causing him to slip and fall and to suffer severe injuries. The complaint alleged that appellee was negligent in failing to furnish skids, pulleys, or other appliances to enable the parties to unload the trunk with safety to themselves, and by failing to furnish a sufficient number of employees, including appellant, to perform the task of unloading the trunk, with safety.
Whether appellant was an emergency employee, is not free from doubt. Kansas has not dealt exhaustively nor clearly with the doctrine of an emergency employee. In Hockenberry v. Capital Iron Works, 96 Kan. 548, 152 P. 628, 629, reference is...
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