The Consolidated Kansas City Smelting and Refining Company v. Allen

• Decision Date: 11 January 1902
• Docket Number: 12,068
• Citation: 64 Kan. 70,67 P. 436
• Parties: THE CONSOLIDATED KANSAS CITY SMELTING AND REFINING COMPANY v. C. S. ALLEN
• Court: Kansas Supreme Court

67 P. 436

64 Kan. 70

THE CONSOLIDATED KANSAS CITY SMELTING AND REFINING COMPANY v. C. S. ALLEN

No. 12,068

Supreme Court of Kansas

January 11, 1902

Decided January, 1902.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

PERSONAL INJURIES--Evidence of Negligence Insufficient. In an action to recover damages for personal injuries sustained by the falling of a bar of lead, where the only negligence relied on is that the stack out of which the bar fell was carelessly or negligently built, a demurrer to the evidence should be sustained, where there is no testimony tending to show that the stack was carelessly or negligently built, or that it fell because it was improperly built.

Harkless O'Grady & Crysler, and Moore & Berger, for plaintiff in error.

Trickett & Dail, for defendant in error.

GREENE J. DOSTER, C. J., JOHNSTON, SMITH, JJ., concurring.

OPINION

GREENE, J.:

The defendant in error, C. S. Allen, sued the Consolidated Kansas City Smelting and Refining Company, plaintiff in error, in the district court of Wyandotte county, to recover damages for personal injuries alleged to have been sustained by reason of the latter's negligence.

When the plaintiff below concluded his evidence the defendant demurred thereto, and the demurrer was overruled. On the trial judgment was rendered for plaintiff. The material allegations of the petition are that on the 24th day of March, 1900, the plaintiff was working for defendant as a common laborer in the refining department, under the direction of Michael Stark; that while in line of duty, loading lead from a stack or pile, one of the bars fell out of the stack upon his foot, seriously injuring it; that the injury was sustained without any fault on his part and solely by reason of the careless and negligent manner in which the stack from which he was removing the lead had been built. It is also alleged that the defendant below was negligent in not warning or notifying plaintiff below of the danger of said bar's falling upon him.

Before the plaintiff below can recover under the allegations of his petition, he must, at least, introduce some evidence tending to prove that the stack of lead out of which the bar injuring him fell was so negligently and carelessly built that it was dangerous for workmen unfamiliar with the stacks to be about, and that the bar which caused his injury fell from the stack because of the negligent manner in which it was built, and not from some other cause.

It appears that the defendant in error had worked for plaintiff in error for some length of time in what is known as the bullion room, where he had stacked bullion in the same general way that it was stacked in the refining room. These pigs or bars are about eighteen inches in length and weigh about eighty-five pounds. He testified that in the bullion room he was taught to build stacks by laying the bars in tiers of five one way and tiers of five crosswise, alternating them, and when thus built the bars would not fall out; that after having worked in the bullion room for some time he was absent about two weeks, and upon returning was put to work in the refining room, where stacks of pure lead of similar size were built in a similar manner to those in the bullion room, and instructed to take down one of these stacks and truck the lead away to a car; that there were also two other trucks being operated in removing the lead at the same time, one of which was loaded from the stack at which he worked; that one truck load, consisting of fifteen bars, had been taken from it; that he then moved his truck to the stack and began to load the bars, and after he had gotten ten or twelve on the truck, a bar two and one-half or three feet from the floor fell out of this stack upon his foot, crushing it. He testified that it fell because of the negligent manner in which the stack was built.

He testified that the bars he took off were properly stacked; that he did not observe anything wrong with the manner in which the stack was built; that so far as he could tell it was properly built, and there was nothing to indicate that it was not safe or built as it should have been; that a loaded truck would stand about two and one-half or three feet high. In answer to the following questions he said:

"Ques. You did not then know, and do not now, but what this pile by which you say you were injured was properly piled, so far as your knowledge goes? Ans. I do not; I did not look at it at all.

"Q. And don't know? A. Yes, sir; I do know, because...