Smith v. Hines

• Decision Date: 11 December 1920
• Docket Number: 22,739
• Citation: 108 Kan. 151,194 P. 318
• Parties: H. H. SMITH, Appellee, v. WALKER D. HINES, Director General of Railroads, and MISSOURI PACIFIC RAILROAD COMPANY, Appellants
• Court: Kansas Supreme Court

194 P. 318

108 Kan. 151

H. H. SMITH, Appellee, v. WALKER D. HINES, Director General of Railroads, and MISSOURI PACIFIC RAILROAD COMPANY, Appellants

No. 22,739

Supreme Court of Kansas

December 11, 1920

Decided July, 1920

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Use of Defective Scaffold--Scaffold Erected Under Direction of Foreman--Rule as to Assumption of Risk. The rule, that where one uses a tool or appliance simple in construction, without protest or objection he cannot be heard to complain of an injury which occurs while he is using it in the ordinary manner, held not to apply, in an action under the Federal employers' liability act, where a workman was injured by the fall of a scaffold on which he was at work and which was erected under the direction of the gang foreman.

2. SAME--Defective Appliance--Servant's Knowledge of Danger--Question for Jury. Following Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 P. 105, held, that it cannot be said as a matter of law either that the danger was so obvious that the plaintiff must have known of it, or that it was so remote that the defendant could not be charged with knowledge of it, and that both questions were for the jury.

3. SAME--Instructions. On the facts stated in the opinion it is held that it was not error to refuse to instruct that the mere fact of the happening of the accident would not sustain a finding of negligence.

4. SAME--Findings Not Contrary to Evidence. Certain answers to special findings considered, and held not to be contrary to the evidence.

5. SAME--Nature of Servant's Injuries--Verdict Not Excessive. The plaintiff's injury resulted in producing a facial deformity. The skull was broken, leaving a protuberance over one eye, and crowding the nose to one side, leaving the eyes crooked and the vision impaired. Held, that a verdict and judgment for $ 11,700 is not excessive.

6. SAME--Verdict--Not a Quotient Verdict. On the facts stated in the opinion it is held that the verdict returned was not a quotient verdict and that there was no error in refusing to set it aside on that ground.

W. P. Waggener, Walter E. Brown, both of Atchison, and Charles W. Roberts, of Winfield, for the appellants.

A. M. Jackson, of Winfield, and A. L. Noble, of Wichita, for the appellee.

Porter J. Porter, J., Burch, J., dissenting.

OPINION

PORTER, J.:

H. H. Smith, while employed with a bridge gang on defendant's railway, was seriously injured, and brought this action under the Federal employers' liability act, both parties being engaged in interstate commerce at the time of the injury. The defense was that plaintiff had assumed the risk. The plaintiff prevailed and the defendant appeals.

Smith was a man of ordinary intelligence, 41 years of age, and a farmer; but he had some experience working as a carpenter with saw and hammer and had been employed with the bridge gang five or six weeks when the accident occurred. He was on a scaffold made by lashing 2 x 6's to the side of the bridge piling, where they were held by ropes and on edge. The scaffold was about 10 feet above the ground. On top of the upper edge of the 2 x 6 was a plank or seat board, 3 x 10, and Smith was seated astride this and was engaged in boring a hole in a post of the bridge when one of the 2 x 6's, which is referred to as a needle beam, broke where the seat board rested and Smith was thrown to the ground, falling on his head and face. The needle beam had been selected about two weeks before from a car of hard-pine timber, and was new timber. There were some knots in it and it broke near these. It had been used as a needle beam on the day before the accident, and prior to that time had been in use for various other purposes about the bridge. On the day of the injury the scaffold had supported the weight of three men, one of whom was Smith, but when the accident happened he was the only man on the scaffold.

It is contended that the court should have sustained a demurrer to the evidence; that plaintiff showed no cause for the break in the timber, and that his claim was merely that the timber was defective and that the fact that it broke was sufficient to establish his case. The plaintiff had testified that the needle beam was only 2 x 6; that he helped tie the ropes around it and drew the ropes up, and that Wilson, the assistant foreman of the gang, was directing the work. The plaintiff claimed that he had no opportunity to examine the needle beam but that he had been on the scaffold a while the evening before when this particular piece of timber was used, and that he had handled it before that time as a straightedge. He helped take the scaffold down the evening before and had helped put it up that morning. He testified that he could and did see the needle beam and that if there had been anything wrong with it he would have spoken to some one about it, but that he made no complaint; that he was looking out for himself to see that it was put up carefully and that it was placed edgewise; that he had Wilson, the foreman, examine the ropes to see that they did not turn; and that he knew that he should pay some attention to these things for his own protection. According to his testimony there was no particular size of timber used for needle beams; he had used 3 x 6, 3 x 10, and 3 x 5 while he worked there; he knew the needle beam on the other side of the bridge was the same size, as he helped take both of them down and helped put both of them up. Another workman was called by plaintiff and testified that the needle beam broke between two knots which were out near the center of the board; the knots were small, about two inches in diameter; and he did not know whether they went clear through the board. Where this witness was working, the needle beams were 4 x 4. Another of plaintiff's witnesses testified that he thought the needle beam was 2 x 6; it looked like a solid board; it did not look like it had any rotten places; he thought it broke between the knots as square as a board could break; he had seen two other men on the same scaffold that morning before the accident; the board that broke was what one would call a good first-class board; and most of the lumber used around the bridge had fine pin knots in it. This was the substance of the plaintiff's testimony.

The defendant insists that negligence could only be established by showing that the board was defective and that the defect was one that could have been ascertained upon inspection and that defendant failed to inspect; further, that the duty of inspection also rested upon plaintiff and that if he had inspected and learned of the defective condition of the board or could have ascertained it, he must be held to have assumed the risk. Numerous cases are cited where it has been held that a scaffold and the planks composing it are simple tools, and that the rule where one uses a tool or appliance, simple in construction, as a scaffold, without protest or objection, he cannot be heard to complain of an injury which occurs while he is using such an appliance in the ordinary manner. We do not believe the rule with respect to the use of a common tool has any application. The doctrine is usually applied to a tool or appliance which is so simple that it involves no expert knowledge and which the servant uses and handles and therefore is presumed to know more about than the master. The defendant cites a number of scaffold cases in which the doctrine has been applied, but in most of the cases it seems that the workmen were constructing a scaffold for their own use from materials furnished in a mass by the employer. Here the scaffold was erected under the direction of the gang boss who selected the needle beam, tied the rope to it and the plaintiff merely assisted in drawing up the scaffold and securing it in place. (See Erwin v. Telephone Co., 173 Mo.App. 508, 158 S.W. 913.)

We think it was a question for the jury whether upon all the facts the plaintiff appreciated the danger attending the use of the board. His testimony is that he would have made complaint if he had thought the board unsafe, and that he made no complaint, and the only inference is that he supposed it was all right. The other workmen seem to have made no complaint. To the contention that it was plaintiff's duty also to inspect, it is sufficient to say that it has been held that "the matter of making the place safe to work in was not his problem. He was not required to take notice of any but the most obvious dangers. But much more than this was required of the employing company. It was under an obligation to consider carefully whether existing conditions involved any unnecessary danger--to use all reasonable care to see that the place was made safe, not only with respect to apparent risks, but also with respect to any that were latent." (Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 101, 140 P. 105.) In that case it was held that it cannot be said as a matter of law either that the danger was so obvious that the plaintiff must have known of it or that it was so remote that the defendant could not be charged with knowledge of it, and that both questions were for the jury. (See, also, King v. King, 79 Kan. 584, 100 P. 503.)

Before assumption of risk will defeat recovery "plaintiff must not only have known of the existing conditions--he must also have realized and appreciated the danger that resulted from them. (26 Cyc. 1199.)" (Tecza v Sulzberger & Sons Co., supra, p. 100.) In Seaboard Air Line v. Horton, 233 U.S. 492, 58 L.Ed. 1062, 34 S.Ct. 635, which was an action under the Federal employers' liability act, it was said as to risks that may arise out of the failure of the employer to...