The Consolidated Kansas City Smelting and Refining Company v. Tinchert

• Decision Date: 30 April 1897
• Docket Number: 201
• Citation: 5 Kan.App. 130,48 P. 889
• Parties: THE CONSOLIDATED KANSAS CITY SMELTING AND REFINING COMPANY v. JOSEPH TINCHERT
• Court: Kansas Court of Appeals

48 P. 889

5 Kan.App. 130

THE CONSOLIDATED KANSAS CITY SMELTING AND REFINING COMPANY v. JOSEPH TINCHERT

No. 201

Court of Appeals of Kansas, Northern Department, Eastern Division

April 30, 1897

April 30, 1897.

Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson Judge. Affirmed.

Judgment affirmed.

Miller & Morris, and Pratt, Dana & Black, for plaintiff in error.

Mills Smith & Hobbs, and C. D. Walker, for defendant in error.

OPINION

MAHAN, P. J.

This was an action to recover damages for injuries inflicted upon the defendant in error through the negligence of the plaintiff in error. The defendant in error was employed by the plaintiff in error as a helper about its blacksmith shop. Out of the usual course of his duties, he was directed, in the night-time, to assist in moving some boiler- plates. The boiler-plates were about sixteen feet long and about four or five feet wide, and were set on edge, perpendicularly, along the wall of a building. They were leaning at an angle against the side of the building, in a safe position; but the foreman of the plaintiff in error, to prevent injury to the wall, had them set more nearly perpendicular. It took several workmen to move them,--a plate at a time. After three of the plates had been moved under the direction of the foreman, he, being in haste about the removal, called upon the defendant in error to assist. There was no light but a torch in the hands of the foreman, and the defendant in error had no opportunity to see the dangerous position of the plates. By direction of the foreman, he took his place between a boiler and the stack of plates, to assist in moving them; and, by reason of their being set up too nearly perpendicular, they fell over upon him, crushing his body and inflicting upon him serious injury. The case was tried by a jury and resulted in a verdict in favor of the defendant in error for nine hundred and fifty-eight dollars. A motion for a new trial was denied, and judgment was rendered upon the verdict.

The first assignment of error in the brief of counsel is that the court erred in overruling the demurrer to the testimony of the plaintiff. There can be no doubt that the testimony was ample to sustain the verdict. The plaintiff had no knowledge of the situation of the plates. They were in a dangerous position. There was not sufficient light afforded to give the plaintiff warning thereof. The defendant Company knew the situation. Its foreman gave no intimation to the plaintiff that he was being sent into the trap, and, indeed, he had no notice, as is disclosed by the evidence, until the iron, weighing about three thousand pounds, fell upon him and crushed him. There is nothing in the record that could possibly be held to disclose any negligence on the part of the plaintiff. He ignorantly and innocently obeyed orders. The trap was set by the defendant's foreman, and it caught the plaintiff. The demurrer was properly overruled.

The second assignment of error is the admission of testimony to the effect that, immediately upon the setting up of the plates in their former position, a guard in the nature of an iron post was driven in to prevent the trap from catching some other person; a precautionary measure that would have prevented the occurrence of the injury to the plaintiff if it had been taken in time.

While the authorities cited in the brief of the plaintiff in error are to the effect that this was error, the opposite rule, and, we think, the better one, has been adopted by our Supreme Court. The act was part of the res gestae; it was done immediately. Under the rule adopted by our Supreme Court, there was no error in the admission of this evidence. The third assignment of error is as to the admission, over the defendant's objection, of evidence that the defendant was a musician and had sustained loss by reason of not being able to play. It is claimed this was error because there was no allegation in the petition to which the evidence could be addressed. The plaintiff in error has itself fallen into an error in this assignment. There was some evidence to the effect that the injuries received by the plaintiff in his chest, the injury to his lung, prevented him from blowing a horn, or a wind instrument, as he had formerly done, but it was offered, not for the purpose of enhancing the damages or as a ground for additional damages, but for the purpose of showing the extent of the plaintiff's injury; and, for this purpose, it was entirely proper, and its admission was not error.

The fourth assignment of error is that the court...