Parker v. City of Wichita

• Decision Date: 08 July 1939
• Docket Number: 34311.
• Parties: PARKER v. CITY OF WICHITA.
• Court: Kansas Supreme Court

92 P.2d 86

150 Kan. 249

PARKER v. CITY OF WICHITA.

No. 34311.

Supreme Court of Kansas

July 8, 1939

A. V Roberts, Benj. F. Hegler, and Verne Roberts, all of Wichita for appellant.

Vincent F. Hiebsch, K. W. Pringle, and Forest V. McCalley, all of Wichita, for appellee.

THIELE Justice.

The plaintiff, an employee of the defendant city, brought an action to recover damages for injuries sustained during the course of his employment. The trial court sustained a demurrer to his evidence and rendered judgment for defendant and the plaintiff appeals.

The gist of the allegations of plaintiff's petition was that he was a common laborer employed by the city for many years and engaged for a considerable time as a cement finisher that on April 13, 1937 he was working under a foreman who in turn was under the city engineer; that plaintiff was directed to take certain chisels and a hammer and make a cut in a concrete pavement in order that the cut might be filled with asphalt for an expansion joint; that this kind of work was not within his general experience; that he was not informed but proceeded under instructions given him; that he had not worked long until particles chipped from the concrete flew into his right eye; that the city failed to furnish him with proper safeguards in that it failed to furnish him with glasses to protect his eyes from the flying particles; that it was a common practice and was usual and common for workers in such work to be furnished glasses, but that plaintiff did not know that glasses were necessary, etc.; that as a result of the particle in his right eye he lost the sight thereof and that such loss was occasioned by the negligence of the city in failing to furnish him with glasses when sending him to do the work. Briefly stated, the city's defense was that plaintiff had been directed to use glasses to protect his eyes in doing the work; that he had proceeded to work without getting the glasses; that he had assumed the risks of his employment; that he had not had his injured eye properly treated if he did have concrete chips or dust therein, and that if plaintiff did lose his eye from some cause it had not incapacitated him as a cement finisher, as he had been steadily employed since a short time following his accident. The answer also denied negligence on the part of the city and alleged the petition did not state a cause of action against the city.

At the conclusion of the introduction of plaintiff's evidence, the defendant demurred on the ground no cause of action had been proved, and on the further ground that it showed plaintiff had assumed the risks of his employment.

In considering appellant's contention that the trial court erred in sustaining the demurrer, we follow the rule often stated that the plaintiff's evidence shall be considered as true, that unfavorable parts shall be disregarded, contradictions shall not be weighed, nor any differences between direct and cross examination, and if there is any evidence which sustains plaintiff's case, the demurrer must be overruled. See Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P.2d 923; Shoup v. First Nat'l Bank, 145 Kan. 971, 975, 67 P.2d 569; Robinson v. Short, 148 Kan. 134, 79 P.2d 903; and Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P.2d 552. For the purpose of clarity, we review the testimony so that statements pertaining to particular matters may be stated together, rather than in the order in which questions were asked and answered.

Plaintiff was thirty-nine years of age, and from 1928 was employed as a cement finisher, whose duty it is to take care of and smooth concrete after it is poured. He knew how it was mixed, the varying proportions of sand and cement to be used for different purposes; that concrete continues to harden until it is about five years old and becomes brittle and hard, and that it is more difficult to chip and work with than ordinary stone. For a time he had a cement contractor's license and completed six or seven jobs of sidewalks, driveway and approaches, where old concrete was removed by use of a sledge hammer, and that the blow of the hammer caused particles to fly. He had been employed by the city about nine months at the time of the accident. On the day of the accident plaintiff reported for duty at a designated place where the W. P. A. foreman gave orders for the day. He told plaintiff to go to a car and get a hammer and chisel and to cut concrete for an expansion joint in the street pavement by cutting on a length approximately one inch wide, to check the concrete and to take a chisel and cut it out; that plaintiff had never cut concrete of that kind before; that the foreman gave him no glasses or goggles, nor did plaintiff ask him for any; that his work before that had been finishing concrete before it set and became hard and there were no flying particles; that he had not performed any work breaking and cutting concrete prior to that time; that as directed he went to work. When he started work, he faced into the wind and he noticed the dust blew into his right eye but he did not know when any particles hit his eye. Up to this time no one suggested the use of glasses or goggles. He did not feel any pain in his eye but it irritated him. He went on with his work the next day and that evening his eye began hurting him and he went to his family doctor who swabbed out the eye. The next morning he told the foreman his eye was hurting him and the foreman gave him some dark glasses which eased the pain and he went on working. The next day he did not work, as it was his day off. The following day his eye was hurting so he could not work and the foreman had him taken to another doctor who proceeded to remove from his...