The Cudahy Packing Company v. Hays

• Citation: 85 P. 811,74 Kan. 124
• Decision Date: 09 June 1906
• Docket Number: 14,642
• Parties: THE CUDAHY PACKING COMPANY v. ROBERT HAYS, a Minor, etc
• Court: United States State Supreme Court of Kansas

85 P. 811

74 Kan. 124

THE CUDAHY PACKING COMPANY v. ROBERT HAYS, a Minor, etc

No. 14,642

Supreme Court of Kansas

June 9, 1906

Decided January, 1906.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CORPORATIONS--Injury to Employee--Notice of Defective Appliance. In an action to recover for injuries sustained by an employee of a corporation because of a defective appliance, the knowledge of a representative of the corporation (a foreman in charge of the department where the defective appliance was used) of the defect is the knowledge of the corporation, and testimony of an admission made by such foreman, in connection with the management of such business, that he knew of the defect, is admissible to show the knowledge of the corporation.

2. EVIDENCE--Irrelevant Answer by a Witness--Motion to Strike Out--Waiver. Where the answer of a witness to a proper question is in part irrelevant and improper, a motion to strike out the objectionable part should be made; and if it is not brought to the attention of the trial court its reception is not available error on review.

3. NEW TRIAL--Newly Discovered Evidence--Showing of Diligence. Before a new trial will be awarded on the ground of newly discovered evidence there must be, among other things, a clear showing that by the exercise of reasonable diligence on the part of the applicant it could not have been procured for the trial.

Warner, Dean, McLeod, Holden & Timmonds, and McFadden & Morris, for plaintiff in error.

S. C. Miller, and W. M. Whitelaw, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

This was an action by Robert Hays against the Cudahy Packing Company to recover damages for personal injuries sustained by Hays by reason of the alleged negligence of the company. Hays was an employee of the company whose principal duties were performed on the second floor of a smokehouse, and who was sometimes employed to remove ham-racks from the third to the second floor of that house. On the occasion of his injury he was directed by the foreman to go to the third floor and bring down some meat-racks. These meat-racks were suspended from an overhead iron-rail system which included switches by which the racks could be moved to the different apartments of the smoke-house. When Hays went to the room on this mission he claims to have inadvertently touched a heavily loaded meat-rack, and that it fell and injured his foot. The reason it fell, as he alleges, was that a bolt supporting the end of a rail was out of place, allowing the rail to sag down at a sharp incline, and the switch being open at the time the meat-rack, when moved, ran down the incline and upon his foot. As the room was somewhat dark at the time Hays did not discover the defect in the rail. The jury found in his favor and awarded him $ 450 for the injury sustained.

A ruling on the admission of testimony is first complained of by the company. Bailey was the foreman in charge of the department in which Hays was working. While giving the circumstances of the injury Hays was asked and answered the following question:

"State . . . what, if anything, Mr. Bailey, the foreman, said to you immediately after the accident in regard to his knowing that this switch was out of order. Ans. He says to me, after I and him goes up there, he says, 'I went myself about two or three days ago and told the millwright to have the fellows come right here and fix this switch.' He says, 'I told him two or three days ago to come and fix it,' and he says, 'if they had come and fixed this switch,' he says, 'this never would have occurred.'"

A proper objection was made to the question, but none was made to the answer, nor was there any motion to strike out any portion of it. Having shown the defect which occasioned the injury, it became necessary for Hays to prove either that the company had knowledge of its condition or that it had existed so long that knowledge of its condition would be implied. The inquiry was as to what was said by Bailey immediately after the injury in regard to his knowledge of the defect, and while the answer was much broader than the question, the...