Parkinson Sugar Co. v. Riley

• Citation: 31 P. 1090,50 Kan. 401
• Parties: THE PARKINSON SUGAR COMPANY v. JESSE WILLIAM RILEY, by his father and next friend, William Riley
• Decision Date: 07 January 1893
• Court: Kansas Supreme Court

31 P. 1090

50 Kan. 401

THE PARKINSON SUGAR COMPANY v. JESSE WILLIAM RILEY, by his father and next friend, William Riley

Supreme Court of Kansas

January 7, 1893

Error from Bourbon District Court.

ACTION to recover for personal injuries. Judgment for plaintiff, at the October term, 1889. The defendant Company comes to this court. The opinion states the facts.

Judgment reversed.

Bawden & Simons, for plaintiff in error:

The court erred in giving the jury the special instructions asked by the defendant in error. A. T. & S. F. Rld. Co. v Ledbetter, 34 Kan. 332; Hickey v. Taaffe, 12 N.E. 290; Warren v. S. K. Rly. Co., 37 Kan. 412; Sanborn v. A. T. & S. F Rld. Co., 35 id. 298; U. P. Rly. Co. v. Estes, 37 id. 729; Rush v. Mo. Pac. Rly. Co., 36 id. 136, 137; Weld v. Mo. Pac Rly. Co., 39 id. 68, 69; Reading v. Pa. Rld. Co., 19 A. 321.

The court erred in refusing to give instruction No. 2 requested by plaintiff in error, and in modifying the same and giving it as modified, instead of giving it as requested. Mo. Pac. Rly. Co. v. Haley, 25 Kan. 56; St. L. & S. F. Rly. Co. v. Weaver, 35 id. 424. This error was not cured by any instruction given.

The court erred in its refusal to give the 7th, 9th, 12th, 13th, 14th, 15th, 18th and 19th instructions requested by plaintiff in error. Pa. Rld. Co. v. Rathgeb, 32 Ohio St. 66; A. T. & S. F. Rld. Co. v. Hawkins, 42 Kan. 359; Corlett v. City of Leavenworth, 27 id. 675; Long v. Sanger, 44 N.W. 1095; St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 432, 433; T. H. & I. Rly. Co. v. Clem, 23 N.E. 965; K. P. Rly. Co. v. Mihlman, 17 Kan. 224; U. P. Rly. Co. v. Estes, 37 id. 717-729; Rush v. Mo. Pac. Rly. Co., 36 id. 136, 137; Weld v. Mo. Pac. Rly. Co., 39 id. 68, 69.

The court erred in overruling the motion of plaintiff in error for judgment in its favor on the special findings of the jury, and also erred in overruling the motion of the plaintiff in error for a new trial. A. T. & S. F. Rld. Co. v. Maher, 23 Kan. 163; Shoemaker v. St. L. & S. F. Rly. Co., 30 id. 359; St. L. & S. F. Rly. Co. v. Shoemaker, 38 id. 723; Harvester Works Co. v. Cummings, 26 id. 367; E. M. N. & S. E. Rly. Co. v. Maxwell, 39 id. 652; Aultman v. Mickey, 41 id. 348; C. I. & K. Rld. Co. v. Townsdin, 38 id. 78: A. T. & S. F. Rld. Co. v. Woodcock, 42 id. 344; A. T. & S. F. Rld. Co. v. Harvey, 31 id. 750, 751; A. T. & S. F. Rld. Co. v. Lindley, 42 id. 714-727.

We submit that the fact that some of the special findings are without any support in the evidence, and others against the evidence, casts suspicion on all the other findings in favor of the defendant in error and on the general verdict. U. P. Rly. Co. v. Fray, 31 Kan. 739-751; U. P. Rly. Co. v. Shannon, 33 id. 446; A. T. & S. F. Rld. Co. v. Weber, 33 id. 543; A. T. & S. F. Rld. Co. v. Wagner, 33 id. 660; A. T. & S. F. Rld. Co. v. Brown, 33 id. 760; Smith v. Findlay, 34 id. 324. See, also, Murphy v. City of Brooklyn, 23 N.E. 888; Fields v. Davis, 27 Kan. 405, 406; A. T. & S. F. Rld. Co. v. Bales, 16 id. 254; City of Topeka v. Sherwood, 39 id. 695.

A. A. Harris, and Henry E. Harris, for defendant in error:

We regard instructions Nos. 1 and 2, given at the request of plaintiff below, taken together, as not only unobjectionable, but as declaring the law to fit all the facts of the case. Counsel assume that Riley "quit work and voluntarily went elsewhere in pursuit . . . of his own pleasure," without the least testimony to warrant such an assumption. He testified, and the jury believed, that by permission of the foreman he started into the factory to warm. He was as much in the line of his employment in so doing as if he had remained outside. His duty did not require him to freeze his hands and feet, or to suffer physical discomfort; it was not so imperative. He was acting with the permission of his superior. Ryan v. Fowler, 24 N.Y. 410; Marshall v. Stewart, 33 Eng. L. & Eq. 1.

In leaving his work for a few minutes, by permission of the man whom the company had set over him, Riley did not outlaw himself, nor was the law's protection withdrawn even for a second.

The jury were fully instructed upon every possible phase of the case, and in substance they were told more than once that Riley could not recover unless the company knew, or by the exercise of ordinary care might have known, of the condition of the cistern. We think that this court, in the case of A. T. & S. F. Rld. Co. v. McKee, 37 Kan. 592, and cases there cited, settled the proposition now under discussion. See, also, Morrow v. Comm'rs Saline Co., 21 Kan. 484; City of Wyandotte v. Gibson, 25 id. 236; Foster v. Turner, 31 id. 58; Dubois v. Campan, 28 Mich. 304; Insurance Co. v. Moore, 34 id. 41; Dole v. Boyd, 47 id. 98; Fowler v. Hoffman, 31 id. 215; Davis v. Farmington, 42 Wis. 425; Hamilton v. Railroad Co., 36 Iowa 31; Skillen v. Jones, 45 Ind. 136.

HORTON, C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The Parkinson Sugar Company is, and has been for several years last past, a corporation organized and engaged in the manufacture of sugar and syrup from sorghum cane, at its factory near the city of Fort Scott, in this state. On the south side of its factory building, and attached thereto, the company has a trough or carrier, through which runs an endless chain, used to convey the stalks of sorghum cane into the building, to be subjected to the process of manufacture. This carrier extends south from the building, and is about 150 feet in length. As the sorghum cane is hauled in from the farm and delivered to the sugar company, it is thrown off in a long pile, parallel with, on the west side of, and a few feet from, this carrier. Immediately adjoining the foundation wall under the south side of the building, and about four feet west of the door leading into the building, there is a small cistern, about three feet in diameter, and four and a half feet in depth, constructed and used by the company to receive, and into which is discharged, steam and waste boiling water from the boilers and engines in the factory. On the 10th day of October, 1888, Jesse William Riley, then between 17 and 18 years of age, became an employe of the sugar company, and from that time until the early morning of the 20th of the same month continued to work for the company, principally in carrying the stalks of cane from the long pile and placing them in the carrier. While at work for the company, on the outside of its factory, about 4 o'clock in the morning of October 20, becoming very cold, he asked permission of Wagner, the foreman of the work in which Riley was engaged, to go into the factory for the purpose of warming himself. Wagner gave the desired permission, and, while attempting to go into the door on the south side of the building, he fell into the uncovered cistern containing the waste boiling water, and was burned and scalded. Subsequently, Jesse William Riley, by his father and next friend, William Riley, commenced this action in the court below, alleging in his petition substantially that the sugar company was guilty of gross negligence in the construction and maintaining of the cistern, and that young Riley, while engaged in its employment, and without any fault or negligence of his own, and without any knowledge of the cistern, fell into the same. Judgment was prayed for on account of the injuries received thereby, in the sum of $ 10,000. The jury returned a verdict in favor of the plaintiff for $ 1,000, and subsequently judgment was rendered thereon, together with costs. Material errors are alleged, and the more important of them we will refer to.

The jury specially found that young Riley, "at the time of his injury, was engaged in the line of his duty to his employer." On the part of the sugar company, it is contended that the finding of the jury is contrary to the evidence, because, "when Riley left his place of work for the purpose of entering the building, he was pursuing his own comfort and pleasure, and had, at most, only the part of a licensee to go to that portion of the premises near the cistern, and that he, as a licensee only, took the risks of accident resulting from the use of the premises in the condition in which they were."

We think the evidence fully sustains the finding of the jury in this matter, because he was permitted by the foreman of the work to go into the factory for the purpose of warming himself. It was about 4 o'clock in the morning. Young Riley was cold. He was as much in line of his employment when going to warm himself as if he were going to the building to take his midnight meal, which he was accustomed to do; or if he had gone upon a call of nature to a water-closet in the building. (Ryan v. Fowler, 24 N.Y. 410; Marshall v. Stewart, 33 Eng. Law & Eq. 1.)

It is ruled that when an employe enters the service of a master he assumes all ordinary hazards incident to such service, and also other perils of which he has knowledge. But, between the master and the employe, the master assumes the duty toward the employe of exercising reasonable care and diligence to provide the employe, with a reasonably safe place at which to work; and, where the service required of an employe is of a peculiarly dangerous character, it is the duty of the master 'to make reasonable provision to protect him from dangers...