Southern Kansas Ry. Co. v. Drake

• Decision Date: 09 February 1894
• Parties: SOUTHERN KANSAS RY. CO. et al. v. DRAKE.
• Court: Kansas Supreme Court

35 P. 825

53 Kan. 1

SOUTHERN KANSAS RY. CO. et al. v. DRAKE.

Supreme Court of Kansas

February 9, 1894

Syllabus

An employe, possessed of full knowledge of the services to be performed by him and of the dangers which they involve, who voluntarily accepts the employment and continues in the service of the employer, will generally be held to have assumed the risk of the hazards of such service, and to have absolved his employer from liability for damages in case of injury. Railroad Co. v. Schroeder, 47 Kan. 315, 27 P. 965.

Error from district court, Franklin county; A. W. Benson, Judge.

Action for personal injuries by Aaron S. Drake against the Southern Kansas Railway Company and the Atchison, Topeka & Santa Fe Railroad Company. There was judgment for plaintiff, and defendants bring error. Reversed.

The other facts fully appear in the following statement by JOHNSTON, J.:

A. A Hurd, Robert Dunlap, and W. Littlefield, for plaintiffs in error.

C. B. Mason and J. W. Deford, for defendant in error.

OPINION

JOHNSTON, J., (after stating the facts.)

There is but little room for dispute as to the cause of the injury for which a recovery is sought, and the findings of fact as returned by the jury, when considered in connection with the previous rulings of this court, clearly point to the judgment that must be rendered. No negligence is imputed to any of the employes of the railway company who were assisting Drake in unloading rails from the push car, but the contention is that the injury resulted from the failure of the company to provide a sufficient number of men to perform that kind of work with reasonable safety. Assuming, as we may, that the company had not provided a sufficient number of persons to perform the labor safely, still we cannot overlook the fact that Drake was fully acquainted with all the hazards incident to the employment, and chose to accept and continue in the performance of such work with full knowledge of all the dangers connected with it. The work of unloading rails from a push car required no special skill, and involved no perils except such as are obvious to every one. Drake, as we have seen, had been engaged in that kind of labor for 2½ years, and had performed similar work with the same or a less number of men. He claimed that it required eight men to safely do that kind of work, and a greater number than five had previously been employed by the company; but for several months before the accident the crew consisted of only five men, and work of the character in question had sometimes been performed by four of them. He continued in the service of the company long after the force at work in the yard was reduced and if, the number employed was insufficient to perform the work he was aware of that fact. The foreman was not present at the time of the accident, and the jury have said that he had a greater knowledge than Drake as to what constituted a sufficient force of men; but that is immaterial, as the jury have found that Drake himself was capable of judging as to what number would be a sufficient force of men to do the work he was engaged in at the time he was injured, with reasonable safety to the men employed. The place for unloading the rails was selected by the men, and before any rails were unloaded attention was called to the character of the place and to the condition of the ground. On account of rain on the previous night the bank upon which the rails were to be thrown was in a slippery condition, and,...