Lively v. The Chicago

• Decision Date: 05 April 1924
• Docket Number: 25,156
• Citation: 115 Kan. 784,225 P. 103
• Court: Kansas Supreme Court
• Parties: GEORGE LIVELY, Appellant, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee

225 P. 103

115 Kan. 784

GEORGE LIVELY, Appellant, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee

No. 25,156

Supreme Court of Kansas

April 5, 1924

Decided January, 1924.

Appeal from Sheridan district court; CHARLES I. SPARKS, judge.

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Injury to Servant--Assumption of Risk. Assuming that the defendant railway company's negligence was either sufficiently pleaded in plaintiff's petition, or inferable from the facts recited therein, held, that the well-pleaded facts, conceded to be true by the demurrer, did not constitute a cause of action under any local statute like the compensation act, and under the federal employer's liability act the doctrine of assumption of risk was applicable thereto and barred a recovery by the plaintiff and defendant's demurrer to plaintiff's petition was not erroneously sustained.

W. L. Sayers, J. S. Parker, both of Hill City, and O. O. Osborn, of Stockton, for the appellant.

Luther Burns, John E. DuMars, both of Topeka, and W. H. Clark, of Hoxie, for the appellee.

Dawson J. Dawson, J. concurring. Johnston, C. J., and Hopkins, J., Harvey, J. dissenting.

OPINION

DAWSON, J.:

Plaintiff, a railway track laborer, was injured in the defendant's service, and brought this action against his employer for damages.

The petition alleged that the defendant railway company was engaged in interstate commerce. Its railway runs through Sherman county. The plaintiff and his foreman were working on the railway track between Goodland and Ruleton in that county when they discovered a broken rail, and it was necessary for both plaintiff and the foreman to remain continuously on duty to flag the many trains which were frequently passing over the track, so that the trains would proceed slowly over the broken rail. The foreman made several unavailing efforts to procure assistance to repair the broken rail. Both workmen were hungry and thirsty, and the foreman decided to replace the broken rail, and said he had handled such a rail with the assistance of one man and that he and the plaintiff could handle it all right. Plaintiff told the foreman that he had never tried to handle a rail with only one man to assist him. The foreman then directed the plaintiff to assist him to lift a heavy steel rail, which was, as he alleged, unsafe to be handled by two men. The two men then lifted and placed the new rail, and in so doing--

"Plaintiff had to exert himself so strenuously that the exertion caused a rupture or hernia in his right side known as an 'Inguinal Hernia,' which wholly disabled the plaintiff from performing any labor from such date till the date of the filing of this suit. . . . And said injury was caused by the strenuous exertion aforesaid while plaintiff was working in the course of his employment, and the same arose out of his employment. . . .

"The plaintiff did not know that he was endangering his health in attempting to handle said rail, and believing that said rail could be so handled with safety and that there was danger of the loss of life and property on account of the defective condition of said road, said plaintiff complied with the instruction of the said foreman as aforesaid and thereby suffered the injury complained of.

"Wherefore, plaintiff prays judgment against said defendant for the sum of $ 1000."

Defendant's demurrer to this cause of action was sustained and plaintiff appeals.

While defendant's negligence was not pleaded in the petition, other than as it might be inferred from the circumstances and facts narrated, the plaintiff's brief gives his theory of the case, and interprets the ruling of the trial court thereon. He says:

"The rail was too heavy for two men to handle, and was unsafe, and plaintiff suffered what is known as an 'Inguinal Hernia' from the strain of lifting and placing the rail. The defendant had neglected to furnish sufficient men to do this job. This, in substance, is the story related in the amended petition. Demurrer by defendant, sustained by the court upon the ground that it was a case of assumption of risk. . . .

"We insist that it was a question for the jury under proper instructions, as to whether or not there was an assumption of risk."

The want of any specific allegations of negligence in plaintiff's petition, and the allegation that the injury was caused "while plaintiff was working in the course of his employment, and the same arose out of his employment," would lead us to infer that the action was originally but somewhat uncertainly intended to be based on the Workmen's Compensation Act. As negligence is not a material element in an action for compensation, such a cause of action could have been stated if the defendant was operating its railway under that act, and although that fact was not alleged, it might be presumed. (Unrine v. Railroad Co., 104 Kan. 236, 178 P. 614; Gimple v. Railroad Co., 108 Kan. 118, 193 P. 1072.) Against this presumption, however, is the fact that the petition does not allege that any written notice of "the time, place and the particulars thereof" was given to the employer within ten days after the accident, nor is there any allegation that a demand was made for compensation within three months, as the statute requires. Neither is there any allegation touching arbitration or any attempt at arbitration. (R. S. 44-520.) These are essential matters to be pleaded in any action for compensation. It therefore seems that no cause of action was sufficiently stated under the compensation act.

The petition, together with plaintiff's statement in his brief quoted above, would also indicate that, notwithstanding no negligence was squarely pleaded, plaintiff was attempting to state a cause of action against defendant for negligence under the federal employers' liability act (35 U.S. Stat. at L. 65, ch. 149, U.S. Comp. Stat. 1918, § 8657 et seq.; Appendix to Goodyear v. Davis, 114 Kan. 557, 574, 220 P. 282), and plaintiff's brief lends strength to this idea where he informs us that the trial court sustained the defendant's demurrer on the ground that it was a case of assumption of risk.

In the case of Grand Trunk Ry. Co. v. Lindsay, 233 U.S. 42, 58 L.Ed. 838, 34 S.Ct. 581, it was held:

"A case which, by allegations and proof, is brought within the Federal Employers' liability act . . . is controlled by that act, although its provisions may not have been referred to in express terms in the pleadings or pressed at the trial." (Syl. P 1.)

But the question of assumption of risk under the federal employers' liability act would not necessarily be one for a jury's determination.

In Burke v. Union Coal & Coke Co., 157 F. 178, 84 C. C. A. 626, in a case where a miner was killed by an electric shock in a coal mine, Judge Sanborn, in sustaining the trial court in directing a verdict for defendant, said:

"The contention that the servant never assumes the risk of the negligence of the master is untenable in the national courts." (p. 629.)

In the opinion a number of controlling rules laid down in earlier federal cases are approved, including the following:

"A servant by entering or continuing in the employment of a master without complaint, assumes the risks and dangers of the employment which he knows and appreciates, and also those which an ordinarily prudent person of his capacity and intelligence would have known and appreciated in his situation. . . .

"An employee cannot be heard to say that he did not appreciate or realize the danger where the defects are obvious, and the dangers would have been known and appreciated by an ordinarily prudent person of his intelligence and experience in his situation." (628.)

See, also, Southern Pacific Co. v. Seley, 152 U.S. 145, 38 L.Ed. 391, 14 S.Ct. 530, and Rose's Notes thereto, addenda pp. 876, 877.

Under the federal act a railway employee does assume all the usual risks and likewise the obvious risks incidental to his employment whether he is aware of them or not, except in cases where a violation of some federal statute for the safety of employees contributes to the workman's injury. In Seaboard Air Line v. Horton, 233 U.S. 492, 58 L.Ed. 1062, 1069, 34 S.Ct. 635, it was said:

"It seems to us that § 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action. And, taking §§ 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation of a statute has contributed to the injury or death of the employee, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of assumption of risk--perhaps none was deemed feasible.

"The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employee; and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employee. The risks may be present, notwithstanding the exercise of all reasonable care on his part. Some employments are...