McCook v. Scott

• Decision Date: 25 July 1900
• Docket Number: 425. [*]
• Citation: 61 P. 1091,10 Kan.App. 413
• Court: Kansas Court of Appeals
• Parties: ALDACE F. WALKER AND JOHN J. MCCOOK, as Receivers of the Atchison, Topeka & Santa Fe Railroad Company, v. L. G. SCOTT

61 P. 1091

10 Kan.App. 413

ALDACE F. WALKER AND JOHN J. MCCOOK, as Receivers of the Atchison, Topeka & Santa Fe Railroad Company, v. L. G. SCOTT

No. 425. ^[*]

Court of Appeals of Kansas

July 25, 1900

Decided July, 1900.

Error from Osage district court; WM. THOMSON, judge.

Judgment of district court affirmed.

SYLLABUS

1. NEGLIGENCE -- Assumption of Risk -- Questions for Jury. Notwithstanding his own expressed fears that the walls of the trench in which he was working as an employee of the receivers of a railroad company might fall and do him bodily injury, the plaintiff, a man of very limited experience in that kind of work, continued in the employment relying upon the assurance of the foreman in charge of the work that the same was entirely safe. Held, that all questions as to the defendant's negligence and as to the plaintiff's assumption of the risks of the employment were for determination by the jury.

2. EVIDENCE -- Expert Testimony. Where the testimony of a witness showed him to be an expert in the matter concerning which he gave his opinion, held, that his testimony was properly received as that of an expert, although he, for some unexplained reason, disclaimed being such.

A. A. Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error.

Pleasant & Pleasant, J. W. Deford, and W. A. Deford, for defendant in error.

OPINION

MILTON, J.:

L. G. Scott, while an employee of the receivers of the Atchison, Topeka & Santa Fe Railroad Company, was injured by the caving in of an embankment of earth. He was at work in a deep trench which extended along the base of an embankment and between it and the Marais des Cygnes river. The trench was being dug and then filled with stones, to protect the embankment against erosion by the river. On the top of the embankment, and a few feet from its edge, was the railroad operated by the receivers. No precautions had been taken to prevent the bank, which was almost perpendicular, from falling. Scott had worked there about fourteen days prior to the date of his injury. The petition alleged that the plaintiff was not familiar with that kind of work; that the foreman in charge thereof was a man of long experience therein, and possessed expert knowledge and skill respecting the same; that no shores or props were used by the defendants or their foreman, at any time while the said work was in progress, to support the steep and dangerous bank and to prevent the same from falling; that at divers times, but particularly on the 8th and 9th days of October, 1895, the plaintiff called the attention of the said foreman to the condition of the embankment, and expressed "his fear and apprehension that said bank was dangerous, and might at any minute fall on the men at work below"; but that the foreman repeatedly, and particularly on the last-named day, assured the plaintiff that the bank was perfectly safe, and thereupon ordered the plaintiff to go into the trench to work therein, which order the plaintiff promptly obeyed, relying entirely upon the superior knowledge, skill, and experience, and the assurance aforesaid, of the said foreman.

The principal defenses stated in the answer were that the risks, if any, incident to the employment were assumed with knowledge thereof by the plaintiff, and that his injury resulted from his own negligence. The evidence on behalf of the plaintiff, and particularly his own testimony, tended to prove the substantial allegations of the petition. It appears that the plaintiff at different times expressed his fear that the bank might cave in, and that on the evening preceding the actual fall of a portion of the bank, which caused the plaintiff's injury, and which happened at a point about twelve feet from the east end of the excavation, the plaintiff had "bet the beer" with Bogardus, the foreman, that the bank would cave in that night. The following morning Bogardus came, while the men were pumping out the water which had gathered in the trench during the night, and he claimed that he had won the bet, as the bank had not fallen. Shortly after his arrival Bogardus said to the plaintiff and another man who worked with the plaintiff in the trench: "Get ready for the mud, boys" -- meaning that they should put on their water-proof boots and go into the trench. They did so, and had barely begun work when the bank fell, causing severe and perhaps permanent injuries to the plaintiff. The point at which it fell was within a few feet of the place indicated by the plaintiff in speaking of the anticipated fall at the time the bet was made. Before going into the trench that morning the plaintiff remarked that he "rather dreaded that place," and he stated in his testimony that he "rather felt a little afraid of it yet." There was testimony that, to the plaintiff's expression of his fear, Bogardus responded, "Scott, you are foolish or out of your head." The plaintiff also testified that at another time Bogardus assured him the bank was solid and safe.

On cross-examination, the plaintiff testified that he had had some experience in quarrying and laying stone and work of that kind, but which did not require excavating below the depth of two feet; that he had dug one well and assisted in digging others, the deepest of which was not over twenty-five feet, and which were dug in Franklin county, where the soil was of about the same character as that in which the trench was being made; that he had mined coal in Franklin county in drift work at a depth from fifteen to fifty feet below the surface, the exact depth not being stated; that he was a man of ordinary observation, and there was nothing to prevent his observing and becoming acquainted with the condition surrounding and affecting the work in the trench. It also appears that there was a difference of opinion among the men engaged in the work in question respecting its safety. At the conclusion of the evidence on behalf of the plaintiff, the defendants demurred thereto, and the demurrer having been overruled, they rested their case without the introduction of evidence, and requested the court to direct the jury to return a verdict in their favor. The request was refused. Verdict and judgment were in favor of the plaintiff in the sum of $ 2000. One of the findings of fact is as follows:

"Ques. If you answer question 1 in the affirmative, state whether or not plaintiff sustained any injuries at either or any place to which he had called the foreman's attention as being dangerous. Ans. Yes."

The principal point discussed by counsel for plaintiff in error is thus stated in their brief:

"The plaintiff was not entitled to recover because, by the terms of his employment, he assumed all the risks incident to the business in the manner in which it was conducted; that his injury occurred in the performance of a risk which he assumed at the time of his employment; that no negligence was shown on the part of the defendant, and that the injury was due to his own negligence and want of care on his part."

Counsel further say in their argument:

"The excavation proper at the time of the injury was from twelve to fifteen feet deep. He (plaintiff) was acquainted and familiar with the entire workings of the trench, having from time to time worked in all parts of it and assisted in making excavations. From the time of his entrance into the trench he became fearful lest the banks on either side would give away and cave in and injury occur to him. It appears from his testimony to have been constantly on his mind. He was almost constantly grumbling and complaining about the likelihood or probability of the bank's caving in. It was a subject...