Kelley v. Ryus

• Decision Date: 05 March 1892
• Citation: 29 P. 144,48 Kan. 120
• Parties: JAMES KELLEY v. W. H. RYUS
• Court: Kansas Supreme Court

29 P. 144

48 Kan. 120

JAMES KELLEY v. W. H. RYUS

Supreme Court of Kansas

March 5, 1892

Error from Wyandotte District Court.

ACTION to recover damages for personal injuries. Judgment for defendant, Ryus, on October 4, 1888. The plaintiff, Kelley brings the case to this court. The material facts are stated in the opinion.

Judgment reversed and remanded.

D. B Hadley, and J. A. Hale, for plaintiff in error.

Scroggs & Gibson, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Wyandotte county, on May 2, 1887, by James Kelley against W. H. Ryus, to recover $ 5,000, for personal injuries alleged to have been sustained through the negligence of the superintendent and foreman of the defendant in operating the defendant's planing mill. The case was tried before the court and a jury, and at the close of the trial the court instructed the jury to render the following verdict, to wit: "We, the jury, find for the defendant;" and the jury rendered such verdict, and judgment was rendered accordingly; and the plaintiff, as plaintiff in error, brings the case to this court for review.

Among the admitted facts are the following: The defendant owned and operated a planing mill in Kansas City, Kan. A. G. Millspaugh was his general superintendent, and J. F. Murray was his foreman for the work in the lower story of the planing mill. This lower story contained the planing-machines, and also contained boring- and mortising-machines. The plaintiff was at work at one of the planing-machines. Murray was at work at one of the boring-machines, and the work of the one interfered with that of the other. Murray changed the work at the planing-machine, with the intention that there should be no further interference, but the change did not seem to be successful. While the plaintiff was guiding a board through the planing-machine it struck the piece of timber which Murray had placed in the boring-machine, and the board was so disarranged and displaced that one of the plaintiff's hands came in contact with the knives of the planing-machine, and one of his fingers was cut off; and this, with the consequent loss, constitutes the injury for which the plaintiff now claims damages.

There were of course three main questions to be tried in the court below: (1) Was Murray a vice-principal for whom the defendant was responsible, or was he only a coemploye with the plaintiff? (2) Did the injury occur through the negligence of Murray? (3) Was the plaintiff guilty of contributory negligence? The first question is probably the only one that can fairly be said to be presented to this court, and the only one which we need to consider, though possibly it may be claimed that the second one is also presented to this court; and these questions are embodied in the more general question: Was there any evidence introduced on the trial in the court below fairly tending to prove the affirmative of both the foregoing questions? If this general question should be answered in the affirmative, then the instruction of the court below to the jury to find for the defendant was erroneous; but if it should be answered in the negative, then the instruction was correct. Some of the evidence with respect to these matters is as follows:

Witness Edward S. Preston:

"Ques. Who was foreman in that room? [The lower story of the planing mill.] Ans. Murray. We all worked under Murray's orders. Kelley told Murray that he couldn't run that piece on account of him running the pulley stile. Murray changed Kelley's rest as far back as he [Murray] could, and cater-cornered to clear the pulley stile, but he didn't quite do it. I was standing there waiting to ask Murray a question. Millspaugh was so busy talking to him that I did not bother him, and when he jerked back and hit Kelley's board, then Kelley run."

Witness Henry S. Preston:

"Ques. State what the duties of Murray were in the mill. Ans. He was foreman over the men. We all worked under his orders in the mill."

Witness James Kelley, the plaintiff:

"Ques. Who employed you? Ans. Mr. Murray employed me the last time I worked at the mill there.

"Q. Who was Mr. Murray? What position did he occupy? A. Well, he was foreman down stairs, down around the machinery."

. . . .

Q. You stated that was Mr. Ryus's planing mill, and Mr. Murray employed you in the work? A. Yes, sir."

. . . .

"Q. Who directed you to work upon that machine? A. Mr. Murray.

"Q. How long had Mr. Murray been there as foreman? A. Well, he was there when I went there at this time; he had been there some time before, I do not know just how long; been there some time, though."

. . . .

"Q. Just tell the jury what occurred between you and this foreman, Murray, when he first came up there and began to work on his machine. A. Well, he came up and went to work on the machine; I think the first piece that I run over, I had hit the piece that he was running through his machine; and I...