The City of Emporia v. Kowalski

• Decision Date: 10 January 1903
• Docket Number: 12,794
• Citation: 66 Kan. 64,71 P. 232
• Parties: THE CITY OF EMPORIA v. ANTON KOWALSKI
• Court: Kansas Supreme Court

71 P. 232

66 Kan. 64

THE CITY OF EMPORIA v. ANTON KOWALSKI

No. 12,794

Supreme Court of Kansas

January 10, 1903

Decided January, 1903.

Error from Lyon district court; W. A. RANDOLPH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT -- Duty of Master. It is the duty of the master to provide for his employees a safe place to work, including structures and surroundings, and safe and reasonably suitable machinery, tools, implements and appliances with which to work, and the employee may enter upon the discharge of his labor assuming that these duties have been performed.

2. MASTER AND SERVANT -- Electric-light Poles -- Evidence of Defects. Where injury results from the falling of an electric-light pole belonging to the city, occasioned by rottenness beneath the surface of the ground, evidence of the condition of other poles which have been in the ground the same length of time, but taken up six months after the accident and exposed to the atmosphere six months before the examination, is competent as tending to show the general condition of the poles in use by the city at the time of the accident.

3. MASTER AND SERVANT -- Assumption of Risks. The ordinary risks incident to the business assumed by an employee are those only which occur after the due performance by the master of those duties which the law imposes on him.

J Harvey Frith, and Kellogg & Madden, for plaintiff in error.

Buck & Spencer, and Lambert & Huggins, for defendant in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

Anton Kowalski recovered judgment against the city of Emporia for injuries sustained, while an employee of the city, by the falling of an electric-light pole, from which judgment the city prosecutes this proceeding.

The city owned an electric-light plant and Kowalski was one of its employees. His duties appear to have been to climb certain of its electric-light poles, to which were attached cross-arms and lamps, clean the lamps and put in new carbon, and to report any defects in the wire, poles, or lamps. He usually completed his work in the forenoon of each day. The remainder of the day he spent about the engine-room carrying away ashes, cleaning the engine, and performing such other duties as were required of him. While at the top of the pole in question, replacing the carbon, the pole, which had become rotten in the ground, fell with him, crushing his leg.

The negligence charged against the city is that it allowed its electric-light poles to remain in the ground until they became decayed and rotten at the base, below the surface of the ground, and thus become dangerous to the lives of its employees whose duty it was to climb such poles for the purpose of cleaning the lamps and replacing the burned-out carbons. It is contended by the city that it was a part of the duty of the plaintiff to inspect the electric-light poles and report their condition to the superintendent; that plaintiff neglected to perform such duty with respect to this pole; that the city was not aware of such defect, and, therefore, his injury was the result of his own negligence. Plaintiff denied that his duty, with respect to these poles, was other than to report any defect in the poles, wires or lamps observable by him in in the performance of his duties, and that the defect in this particular pole was not observable or known to him at the time of the injury.

Certain interrogatives were submitted to the jury, among which were the following:

"Was plaintiff required to make other than a superficial examination of any of the poles? No.

"Did the city, by its manager or any other official, ever make any careful examination or inspection of that pole? No.

"Was the plaintiff negligent, under all the circumstances, in making no other or further inspection than the evidence shows he did make? No.

"Was not the defendant negligent in not examining or inspecting that pole? Yes."

These questions having been submitted to the jury and the findings made upon contradictory evidence, they are conclusive upon the plaintiff in error on the questions of fact involved in its contention. The court instructed the jury as follows:

"That plaintiff, as an employee of said defendant, in the exercise of his duties as such employee, had a right to assume that defendant had performed its duty in providing suitable tools and appliances, including poles, and plaintiff was not bound to exercise care in ascertaining, or even inquiring, whether defendant had so performed its duty."

It is complained that this absolved the plaintiff from the exercise of care in ascertaining whether the pole in question was a dangerous one to climb at the time of the accident. The defect in the pole which caused it to fall was in that part which was buried in the ground, and the evidence shows that an inspection of that part of the pole is made with a long spade, called a sharp-shooter, and an iron bar. Such defect was not observable by a casual examination.

It is the duty of a master to furnish a safe place for his servants to work, and reasonably safe tools and appliances to work with, and the employee, without instituting an investigation to ascertain the condition of the premises, may assume that the master has performed this duty. (O'Neill v. Chicago, R. I. & P. R. Co., 62 Neb. 358, 86 N.W. 1098.) In Porter v. Han. and St. Jo. R. R. Co., 60 Mo. 160, 162, it was said:

"It is not the business of the servant, nor has he the means of ascertaining whether, the machinery or structure upon which he is employed to operate is defective. It is the duty of the employer to furnish these appliances; and if he failed to do so, he is responsible for injuries resulting from defective machinery."

In C. & E. L. R. R. Co. v. Kneirim, 152 Ill. 458, 462, 39 N.E. 324, 43 Am. St. R. 259, speaking of the duties assumed by a railway brakeman, it was said:

"Whilst Kneirim assumed the ordinary dangers and risks of his employment, he did not assume a risk of the negligence of the employer in failing to have the cars and appliances in a reasonably safe condition. He had a right to believe the cars were, as to their repair, in a reasonably safe state, and that the master's duty in that regard had been discharged."

If however, the place is dangerous, or the tools and appliances furnished are unfit for the use for which they are intended, and these facts are within the knowledge of the employee, or are so plainly observable that in the exercise of reasonable care he should have discovered the danger therefrom, and he continues in the service without objection or without promise of...