The Creamery Package Manufacturing Company v. Daniels

• Citation: 72 Kan. 418,83 P. 986
• Decision Date: 09 December 1905
• Docket Number: 14,348
• Parties: THE CREAMERY PACKAGE MANUFACTURING COMPANY v. CHESTER DANIELS
• Court: Kansas Supreme Court

83 P. 986

72 Kan. 418

THE CREAMERY PACKAGE MANUFACTURING COMPANY v. CHESTER DANIELS

No. 14,348

Supreme Court of Kansas

December 9, 1905

Decided. July, 1905.

Error from Wyandotte district court; J. MCCABE MOORE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Personal Injuries--Assumption of Risk. In an action brought by an employee to recover for personal injuries sustained through the negligent omission of the employer to remove or cover a circular saw when not in use findings that the plaintiff knew that the saw was in motion and knew the effect of coming in contact with it will prevent his recovering judgment, when it is further found that the defendant was not negligent in any other respect. ^[*]

Harkless, Crysler & Histed, and A. L. Berger, for plaintiff in error.

Charles R. Cooksey, and Bird & Pope, for defendant in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.

Chester Daniels, a boy not quite eighteen years of age, was injured while in the employ of the Creamery Package Manufacturing Company. He brought an action against the company, alleging that his injury was due to its negligence, and recovered a judgment for $ 600, from which the defendant prosecutes error.

The plaintiff worked near a small circular saw, his work requiring him to pass back and forth near it. Upon one occasion, while carrying some boards by it in the course of his employment, the floor being strewn with sawdust, he stepped upon a "cull-head," or piece of waste board, slipped and fell, and in falling threw out one hand, which came in contact with the saw and was severely mangled. In his petition he alleged that the defendant was negligent in these respects: (1) In failing to provide sufficient light in the room where the machinery was; (2) in allowing the passageway over which the plaintiff was required to go back and forth near the saw to become and remain obstructed; (3) in failing either to remove or cover the saw whenever, as at the time of the injury, it was not in use.

In response to a special question, however, asking the jury to state fully in what the negligence of the defendant consisted, the answer was returned: "For not removing saw from mandrel or covering it up when not in use." This is in effect a finding that there was no negligence on the part of the company in respect to the lighting of the room or the obstruction of the passage, and that the company was not derelict toward the plaintiff in any matter other than that specifically named. The jury also found specially that the plaintiff had worked more than a week in this room, during which time he frequently saw the machinery in operation; that he knew of the practice of allowing the saw to run when not in actual use; that he knew and understood the result of getting his fingers against the saw; that he knew the saw was running at the time he was walking toward it and before the time he was hurt.

The defendant contends that these findings compel a judgment against the plaintiff for the reason that they show an assumption on his part of the risk occasioned by the negligence of which he complains. The contention must be sustained. The saw while in motion presented a peril that was obvious to the meanest intelligence. The mere fact that the plaintiff was a minor does not affect the matter. (Bess v. Railway Co., 62 Kan. 299, 62 P. 996.) A boy practically eighteen years of age was as capable as an older person of seeing and understanding such a peril. It is true that in order for him to be deemed to have assumed the risk he must not only have been aware of the conditions that existed but also of the danger that arose from such conditions. But whatever...