Schwarzschild & Sulzberger Company v. Cyrus
| Decision Date | 11 November 1905 |
| Docket Number | 14,230 |
| Citation | 72 Kan. 190,83 P. 406 |
| Court | Kansas Supreme Court |
| Parties | SCHWARZSCHILD & SULZBERGER COMPANY v. CYRUS V. WEEKS |
Decided. July, 1905.
Error from Wyandotte district court; E. L. FISCHER, judge.
STATEMENT.
DEFENDANT in error sued to recover for personal injuries occasioned by the operation of a friction hoist used in raising and lowering beeves in a packing-house. The case was here once before, and was reversed for error in the instructions. ( Schwarzschild & Sulzberger Co. v. Weeks, 66 Kan. 800, 72 P. 274.)
At the close of plaintiff's testimony upon the second trial he asked leave to amend his petition to conform to the facts proved. Defendant objected, and the court overruled the objection. The amendment was dictated to the court reporter but was not written out or attached to the petition until the time of the settlement of the case-made, when, by order of the judge, it was written out and attached to the original petition before the case-made was settled.
The original petition alleged that, in the process of slaughtering beeves, after the cattle were killed they were shackled by the hind feet and hoisted to an overhead track and thus conveyed to the skinning beds. A beef was dropped on each bed, where men skinned the legs and washed the shanks then a heavy iron spreader was attached to the hind legs and the beef was again hoisted, and, as work progressed upon it conveyed along the overhead track. After the carcass of a beef had been hoisted the second time "fell-beaters" removed the hide, "gutters" opened the paunch, and "paunch-pullets" removed the paunches. It was the duty of the man following the shank-washer to hoist the carcass to the proper elevation for completing the work. The hoisting was done by means of an appliance called a friction hoist, operated by a rope. The operator was called the hoister. Next following him were the fell-beaters, who with cleavers beat away the skin from the shanks. To operate the friction hoist required skill and experience. If the rope were unskilfully handled the beef would fall to the floor and endanger the lives of the workmen. Plaintiff was employed as hoister in charge of the hoisting apparatus. It became his duty, in case a workman in front of him left the line for any purpose, to step forward and take the place of that workman; and it then became the duty of one of the fell-beaters immediately behind him to take his place and operate the hoist, the fell-beaters being experienced and skilled in the operation thereof.
At the time of the injury to plaintiff one of the workmen ahead of him was called away. Plaintiff took his place, and was engaged in washing shanks when one of the paunch-pullets, without the knowledge of plaintiff or of the fell-beaters, seized the rope and attempted to raise a beef immediately behind plaintiff, and by reason of his unskilfulness and inexperience in the operation of the hoist the beef dropped upon plaintiff and injured him. It was further alleged that the defendant company, without the knowledge of plaintiff, had allowed and permitted other employees who were inexperienced and unskilled in its operation, including this particular one, to operate the hoist, and that defendant was negligent in so doing.
The amendment alleged that it was an established rule that no one but the hoister and the two fell-beaters behind him should operate the hoist, and that without plaintiff's knowledge the rule became relaxed; that the man Shortridge, who attempted to operate it, was not informed of the rule or instructed in the use of the hoist.
The answer, in addition to a general denial, set up that plaintiff had assumed the risk of the injury; also, that the injury was the result of the negligence of fellow servants.
Defendant offered no evidence, but elected to stand upon its demurrer to the evidence of the plaintiff. The jury found for plaintiff. The court denied the motion for a new trial, and defendant brings the case here for review, alleging numerous errors.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. MASTER AND SERVANT--Injury to Employee--Negligence of the Master. In an action by a servant against the master for negligence, where the negligent act is in violation of a positive duty which the master owes to the servant, that becomes the controlling fact in determining the master's liability; and where the negligence of the master is the proximate cause of the injury the master will be held liable, notwithstanding the negligence of the master may have been set in operation by the act of one who otherwise might be held to be a fellow servant.
2. MASTER AND SERVANT--Duty of Master. The master owes to the servant the duty to take reasonable precautions to protect the servant from injury.
3. MASTER AND SERVANT--Proximate Cause. Negligence is the proximate cause of an injury when it appears that "the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances."
Frank P. Sebree, J. D. Wendorff, and Angevine & Cubbison, for plaintiff in error.
William B. Sutton, and H. E. Dean, for defendant in error.
OPINION
Counsel for plaintiff in error devote a considerable part of their brief to the contention that it was error to allow the amendment, because there was no evidence in support of it, and what there was, if any, was admitted over their objection; that the amendment was not made, in fact, until months after the trial, at the time fixed for the settling and signing of the case-made, and introduced a new cause of action, which was barred by the statute of limitations. The case-made shows that permission to make the amendment was asked and granted at the close of plaintiff's testimony; that prior to the settling and signing of the case-made it was written out from the notes of the court reporter by order of the judge, attached to the original petition, and incorporated in the case-made; so that the question whether it was made at the time it purports to be is immaterial. We are bound by the recitals of the case-made.
It is urged that, there being no allegation in the original petition in reference to an established rule, it was error to permit evidence of such a rule. At the same time it is contended that the evidence introduced failed to prove the existence of any established rule. To the latter contention we agree. The most that can be said for the evidence is that it tended to prove that a sort of method prevailed in the operation of the killing beds, and that certain workmen had certain duties in connection with the operation of the friction hoist. So far as the evidence of which complaint is made tended to prove these things, it was not a departure from the general scope of the original petition. Plaintiff in error was not prejudiced by the attempt to prove the establishment of a fixed rule, since the attempt failed. The allegation in the amendment of the existence of a rule stands as though made in the original petition and not proved.
The whole contention about the amendment to the petition, however, becomes immaterial. It appears from an examination of the instructions that the trial court ignored the amendment entirely and instructed as if it had not been made. This practically takes the amendment out of the case, and with it goes one of the main contentions.
Plaintiff in error argues that the court should have sustained the demurrer to the evidence, and raises several points, the chief of which are: (1) That defendant was not guilty of any negligence; (2) that the injury was caused by the act of a fellow servant. We shall consider these points together.
The fellow-servant doctrine is not involved in the case, as we view it. The master owes certain duties to the servant, among them the duty to take reasonable precautions to prevent an injury to the servant while at work. In Brick Co. v. Shanks, 69 Kan. 306, 76 P. 856, it was held that whenever the negligent act violates a duty which the master himself owes to the servant, that becomes the controlling fact in determining the master's liability, notwithstanding the negligence of the master was set in operation by one who otherwise might have been designated a fellow servant. In some of the controlling principles that case was similar to this, though the facts there were different, and there was involved the question of the duty of a pit-boss to warn the employees of certain dangers; but the duty of the master to conduct his business "in a manner affording reasonable safety to his employees" is recognized.
In Daniel's Adm'r v. Ches. & O. R'y Co., 36 W.Va. 397, 412, 15 S.E. 162, 16 L. R. A. 383, 32 Am. St. Rep. 870, the court, in enumerating the personal non-assignable duties "which the master owes his servant, no matter by whom performed," and quoting from 28 W.Va. 610, 617, 57 Am. Rep. 695, said:
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