Missouri v. Puckett

• Decision Date: 06 April 1901
• Docket Number: 11,897
• Citation: 64 P. 631,62 Kan. 770
• Court: Kansas Supreme Court
• Parties: MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. D. W. PUCKETT

64 P. 631

62 Kan. 770

MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. D. W. PUCKETT

No. 11,897

Supreme Court of Kansas

April 6, 1901

Decided January, 1901.

Error from Neosho district court; L. STILLWELL, judge.

STATEMENT.

THIS action was brought by defendant in error against plaintiff in error in the district court of Neosho county to recover damages for personal injuries, alleged to have been sustained while in the employment of the plaintiff in error as a common laborer on the section, by reason of the negligence of the plaintiff in error.

He pleaded two causes of action. In the first he stated, in substance, that in July, 1898, while working for plaintiff in error under the direction of one Arthur McDonald, as section foreman, he was ordered by said foreman to assist his fellow workmen in unloading a hand-car from a flat-car, and, also in loading a hand-car upon a flat-car; that plaintiff in error, by order of said section foreman, had caused to be erected a platform upon which he and his fellow workmen should stand while performing such work; that said platform was so carelessly and negligently constructed that, while defendant in error and his fellow workmen were thus loading said hand-car, the platform gave way, precipitating them to the ground with such force, together with the weight of the hand-car, that defendant in error was seriously injured by being ruptured in his right groin; that by reason thereof he was compelled to quit work and hire a physician, and was laid up for about two weeks, and damaged thereby in the sum of $ 1000.

In his second cause of action he stated, in substance, that in July 1898, he took employment from plaintiff in error as a laborer on the section, under the direction of one Arthur McDonald as foreman, and that in the performance of his duties in keeping the track in repair they used a tool furnished by plaintiff in error, called a lifting-jack. This tool was used for the purpose of lifting the track, in order that defective ties might be removed and replaced with good ones or the track surfaced up and made level. This lifting-jack has a shaft with a foot at one end, which, when being operated, stands erect with the foot on the ground; around this shaft are clutches, knuckles or rings, and extending down is an iron hand, which is fastened under the rails; this tool is operated with a lever and the clutches are intended to hold where they are placed, and by operating the lever the track is thus raised; the shaft of this lifting-jack, by reason of long use, had become worn and was so smooth that the clutches could not be made to hold, and would slip and drop the weight; and while the defendant was thus operating this lifting-jack, and on or about the 8th day of February, 1899 these clutches slipped, permitting the weight of the track to fall, the lever-bar catching him in the right groin and throwing him upon the track, thus inflicting a permanent injury and total disability ever to perform manual labor.

The cause was tried to a jury, and, after both parties had introduced their evidence, the court instructed the jury that the plaintiff below was not entitled to recover on his first cause of action. The jury found for the plaintiff below on his second cause of action, and assessed the amount of his recovery at $ 3000. A motion for a new trial was made and overruled and the plaintiff in error brings the case here.

Judgment affirmed.

T. N. Sedgwick, and J. L. Denison, for plaintiff in error.

W. R. Cline, and C. A. Cox, for defendant in error.

OPINION

GREENE, J.:

It is argued by plaintiff in error that defendant in error cannot recover because he did not apprehend any danger to himself by the use of this jack. We think this contention is without merit. The defendant in error testified that he had frequently called the attention of the foreman to the defective condition of this jack and that they both had tried to remedy it; that the foreman had, on several occasions, told him he would send it in and have it repaired or...