Southern Kansas Ry. Co. v. Moore

• Decision Date: 08 October 1892
• Citation: 31 P. 138,49 Kan. 616
• Parties: THE SOUTHERN KANSAS RAILWAY COMPANY v. WILLIAM A. MOORE
• Court: Kansas Supreme Court

31 P. 138

49 Kan. 616

THE SOUTHERN KANSAS RAILWAY COMPANY v. WILLIAM A. MOORE

Supreme Court of Kansas

October 8, 1892

Error from Cowley District Court.

ACTION by Moore against the Railway Company to recover for damages for bodily injuries. Judgment for the plaintiff for $ 824 February 25, 1889. The defendant Company brings the case here. The facts appear in the opinion.

Judgment reversed.

Geo. R Peck, A. A. Hurd, Robert Dunlap, and O. J. Wood, for plaintiff in error:

1. The plaintiff voluntarily and without objection undertook to perform the work in the manner it was done, with full knowledge of the danger and risk. He therefore assumed the risk of danger. The defendant was not negligent under the circumstances, and plaintiff cannot recover.

Under the special findings of the jury, there was no negligence in any other of the employes, and indeed there was no evidence in the case to justify the finding of negligence in any fellow-servant. The remaining question, therefore, is whether the defendant was negligent in respect to the matters found by the jury, and whether the plaintiff did not assume the risk in any event. If the nature of plaintiff's employment was not changed and he continued to do the work in a different manner, he assumed the risks incident thereto. The master has generally the right to determine for himself in what way he thinks it advisable to conduct his business and he cannot be held guilty of negligence towards a servant who has knowledge of the danger, in asking the servant to perform the work in that manner. In Wormell v. Maine Cent Rly. Co., 10 A. 51, it is said:

"Every employer has the right to judge for himself in what manner he will carry on his business as between himself and those whom he employs, and the servant having knowledge of the circumstances must judge for himself whether he will enter his service, or having entered, whether he will remain."

This is not like the case of requiring one of immature years to perform duties more dangerous than those for which he was employed. It such a case it may well be held that the master is negligent in requiring one of immature years to perform more dangerous services without special instructions. In the present case, however, the plaintiff voluntarily, without objection, undertook to perform the service, and as to him the maxim "Volenti non fit injuria" must be held to apply. See Membery v. Great Western Rly. Co., Law Rep. 14, App. Cas. 179. Much that is said in the case of Leary v. B. & A. Rld. Co., 139 Mass. 580, cited with approval by this court in A. T. & S. F. Rld. Co. v. Schroeder, 47 Kan. 315, is pertinent here.

In the case at bar, the plaintiff voluntarily, without protest or complaint, undertook to perform the service as it was being done, and therefore voluntarily assumed the danger or risks which were known to him and which were so plain. The case of Leary v. B. & A. Rld. Co., supra, is followed and cited with approval in Russell v. Tillotson, 140 Mass. 201. The same principle is reiterated in the case of Wormell v. Maine Cent. Rly. Co., 10 A. 49 and 54, and a number of authorities are cited sustaining the proposition. Upon the same point, see, also, Cole v. C. & N. W. Rly. Co., 37 N.W. 84, 90, and 91, and authorities cited; also Smith v. Union & St. P. Rly. Co., 43 id. 968. See Cummings v. Collins, 61 Mo. 521; Goodenow v. Walpole Emery Mills, 15 N.E. 576; Sullivan v. Manufacturing Co., 113 Mass. 396; G. H. & S. A. Rld. Co. v. Drew, 59 Tex. 10; May v. O. & Q. Rly. Co., 10 Ont. Rep. 70; Keen v. Detroit &c. Rolling Mill, 33 N.W. 400; Houston & Tex. Cent. Rly. Co. v. Fowler, 8 Am. & Eng. Rld. Cases, 504; Galveston &c. Rld. Co. v. Lempe, 11 id. 201.

2. The court erred in instructing the jury. While the court committed error in laying down the rule of comparative negligence, and permitted the plaintiff to recover, even though the jury should find that his negligence, though slight, contributed to the injury, it also erred in giving another instruction, to which his attention was specifically directed at the time. The following instruction, excepted to by the defendant, was given by the court:

"If from all this testimony you believe that they had been in the habit of doing this business in a safer and more prudent manner before and after the time than they were doing at this time, then that would be sufficient evidence for you to find negligence upon their part."

This instruction was erroneous and misleading, because it informs the jury that, if the company had been in the habit of doing business in a safer and more prudent manner both before and after the accident than they were doing at the time, the jury would be warranted in finding the defendant negligent, although the way in which the work was being done at the time was reasonably prudent. The way the work was being done at the time of the accident was not necessarily negligent. The plaintiff, if he had used reasonable care and had looked out for himself, could have avoided the accident, and while perhaps there may have been a safer way of doing the work or requiring it to be done, yet the company was not negligent in failing to adopt the safest way, or in failing to require the work to be done in the safest manner. As to the servant, it is only obliged in any event to exercise reasonable care and diligence in the discharge of the duties incumbent upon it. With respect to its machinery, it is only required to use reasonable care and diligence to provide reasonably safe machinery. Better machinery may be in use and better machinery may be used, but still it is not incumbent upon the employer to adopt the safest and best, as to an employe. Such a duty only devolves in favor of a passenger, where the highest degree of care is to be exercised by a carrier. Now, the jury would infer from the instruction given by the court, that although the way in which the work was required to be done at the time of the accident may have been reasonably prudent, yet they should find the defendant liable to the plaintiff and guilty of negligence, if they believed that there was a safer method of performing the work. So it will be seen that such an instruction would naturally be calculated to mislead the jury, if they were disposed to be fair and unprejudiced in this matter, as they ought to have been.

Peckham & Peckham, for defendant in error:

The general verdict and special findings are in entire harmony, are within the issues presented by the pleadings, and fully sustain the judgment of the district court.

It is claimed that the court misdirected the jury in laying down to them the rule as to comparative negligence of plaintiff and defendant. Even if this were true, it is immaterial for the purposes of this case. The defendant below, with the usual object sought to be attained, has caused to be submitted to the jury certain special questions. This practice is oft-times a boomerang, and the answers to questions may return to plague the questioner who is unwilling to rely upon the general verdict. The jury in this case, in answer to such questions, find specific acts of negligence on the part of defendant, and also find that the plaintiff was not guilty of contributory negligence, slight or otherwise. By these findings, which in this record must be taken to be fully supported by the evidence, plaintiff in error is concluded, and it is immaterial whether the trial court instructed correctly or incorrectly upon the doctrine of comparative negligence. There are no negligences to compare. In thus treating the question of the correctness of the instructions of the court upon the proposition referred to, we do not, however, wish to be understood to admit that the instructions of the court are erroneous, but maintain, to the contrary thereof, that the rule as to comparative negligence is fairly stated, taking the instruction as a whole, and not by picking out detached sentences.

It is further complained that there is error in the giving of a certain instruction, as follows:

"If, from all this testimony, you believe that they had been in the habit of doing this business in a safer and more prudent manner before and after the time than they were doing it at this time, then that would be sufficient evidence for you to find negligence upon their part. If you are satisfied that they were not at this time doing this in a way that ordinary prudence and care would require a railroad company to do similar work, then you would be justified in finding them guilty of negligence."

Counsel for plaintiff in error choose to detach and quote only the first clause of this paragraph. We give the entire paragraph as it is found in the instructions given, and contend that, as applied to the facts shown in evidence, it is neither erroneous nor misleading. It is argued that, "as to the servant, it (the railroad company) is only obliged in any event to exercise reasonable care and diligence in the discharge of the duties incumbent upon it. With respect to its machinery, it is only required to use reasonable care and diligence to provide reasonably safe machinery. Better machinery may be in use, but still it is not incumbent to adopt the safest and best as to an employ."

This enunciation of the doctrine of the duties of a railroad company is evasive and misleading as an argument against the instruction complained of, taken in connection with the undisputed facts in this case. The business in which plaintiff was employed is confessedly hazardous, even with the best and safest appliances, used with the greatest care. Can it be reasonably contended that, with reasonably safe appliances lying ready at hand, the defendant company may neglect and refuse to make use of the same for the protection and safety of its employes?...