Hill v. The Atchison

• Decision Date: 11 December 1909
• Docket Number: 16,217
• Citation: 105 P. 447,81 Kan. 379
• Court: Kansas Supreme Court
• Parties: LINDSAY L. HILL, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

105 P. 447

81 Kan. 379

LINDSAY L. HILL, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 16,217

Supreme Court of Kansas

December 11, 1909

Decided July, 1909.

Appeal from Sumner district court; CARROLL L. SWARTS, judge.

STATEMENT.

THE plaintiff, a fireman, slipped from the steps of his engine as he was going down to turn a switch. His left leg was caught under the wheels of the engine and crushed so as to require amputation. He alleged that the cause of his injury was a coating of ice upon the step, caused by a leak in the tank hose. On the evening of December 12 the plaintiff and the engineer of this locomotive had taken it to the roundhouse at La Junta. This hose was then leaking, the leak being caused by a hole worn through the hose by contact with a metal pipe. The engineer reported this defect by an entry upon a book at the office kept for such reports. The next morning they found the hose still leaking. They called upon the roundhouse foreman for a new hose and were given a requisition upon the storehouse for one, but there was none in stock, and the foreman wrapped the defective hose with rubber, thereby stopping the leak, and directed them to go out upon their trip with the engine, which they accordingly did. They returned with the engine to La Junta on December 17, when they again called the foreman's attention to this defective hose and were told that a new one would be supplied as soon as it could be obtained, but that there was none on hand yet. The engineer said there should be a new hose, as that one was liable to leak or break. The engine was again taken out and worked by these two men until December 22, when they were ordered to run it, without any cars attached backward from Garden City to Dodge City. This they did arriving at Dodge City about ten P. M. Down to the time they left Garden City the hose had not leaked, to their knowledge. The position of the hose was behind the steps, and about ten inches from them, and as the engine was moving east that night it was north of the steps. The wind was blowing from the north, and the night was cold. When slowly approaching the switch leading to the roundhouse at Dodge City the plaintiff, with his lantern swung upon his arm and his switch key in hand, stood with one foot upon the lower step and the other upon the step above, holding to the rails of the cab and tank with his hands. In stepping down to turn the switch his foot slipped from the lower step and he was injured as already stated. It was then discovered that the hose was leaking, and that the step was covered with ice. On cross-examination the plaintiff testified:

"Well the hose was wrapped and stopped the leaking, but it was liable to break at any time and we kept talking to them about it, wanting them to keep their minds on it so as when they got one they would put it on.

"Q. Is that the reason that you went in and called for the hose after it had been wrapped? A. Yes, sir."

The court sustained a demurrer to the evidence, and this is the ruling complained of.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Defective Appliances--Injury to Employee. In the absence of wanton or intentional wrongdoing an employer who furnishes defective instrumentalities is liable to an employee only when danger would reasonably be apprehended from their use.

2. MASTER AND SERVANT--Unforeseen Accident. If persons of ordinary caution and prudence would not, in the light of the attendant circumstances, anticipate danger in using a defective appliance, and danger is not a natural and probable consequence of such use, liability to an employee for negligence in furnishing it does not arise against the employer.

W. W. Schwinn, for the appellant.

William R. Smith, O. J. Wood, and Alfred A. Scott, for the appellee.

OPINION

BENSON, J.:

It is stated by counsel that the demurrer was sustained upon the ground that the danger from the leaky hose was one of the risks assumed by the plaintiff in continuing in the service after he had acquired knowledge of the defect. If this were the only reason for the ruling it could not be sustained. As we view the evidence the complaints made concerning the defective hose and the promise given to replace it presented questions of fact concerning the assumption of risk proper for the findings of a jury. (S. K. Rly. Co. v. Croker, 41 Kan. 747; Andrecsik v. New Jersey Tube Co., 73 N.J.L. 664, 63 A. 719; Hough v. Railway Co., 100 U.S. 213, 25 L.Ed. 612.)

The vital question is whether, in requiring the use of this appliance after notice of its defective condition, the defendant was guilty of such negligence as afforded the plaintiff a right of recovery for the injuries suffered.

In the absence of wanton or intentional wrongdoing an employer who furnishes defective instrumentalities is liable only where danger to the employee would reasonably be apprehended from their use. If persons of ordinary caution and prudence would not, in the light of the attendant circumstances, anticipate danger from the use of a defective appliance, and danger is not a natural and probable consequence of such use, liability to an employee for furnishing such an appliance does not arise. On the other hand, it is held that negligence is a ground of action for an injury where it appears that "the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." (Schwarzschild v. Weeks, 72 Kan. 190, 83 P. 406, syllabus.) It is also held, however, that it is not necessary that the specific injury should have been foreseen; but only an injury of some character. ( Railway Co. v. Parry, 67 Kan. 515.) These general principles are supported by other decisions of this court, and the courts of other states, and are stated by text-writers. (Cleghorn v. Thompson, 62 Kan. 727, 64 P. 605; Railway Co. v. Columbia, 65 Kan. 390; Rodgers v. Railway Co., 75 Kan. 222; Leonard v. Collins, 70 N.Y. 90; McCallum v. McCallum, 58 Minn. 288, 59 N.W. 1019; Williams v. Railroad Company, 119 N.C. 746; 1 Labatt, Mas. & Ser. § 142; I Thomp. Com. L. of Neg. §§ 57-59; Bishop, Non-Cont. Law, § 691.)

The hose was used to conduct water from the tank to the injector to supply the boiler. If through leakage it should become inadequate for this purpose, an insufficient supply might result and the natural and probable consequences of such insufficiency would be foreseen; but it does not seem reasonable to the court that the formation of...