The Kansas City Car and Foundry Company v. Sawyer

• Citation: 7 Kan.App. 146,53 P. 90
• Decision Date: 01 March 1898
• Docket Number: 434
• Parties: THE KANSAS CITY CAR AND FOUNDRY COMPANY v. REUBEN W. SAWYER
• Court: Kansas Court of Appeals

53 P. 90

7 Kan.App. 146

THE KANSAS CITY CAR AND FOUNDRY COMPANY v. REUBEN W. SAWYER

No. 434

Court of Appeals of Kansas, Northern Department, Eastern Division

March 1, 1898

Opinion Filed May 4, 1898.

Error from Wyandotte district court; HENRY L. ALDEN, judge. Affirmed.

Judgment affirmed.

Warner Dean, Gibson & McLeod, and Miller & Morris, for plaintiff in error.

John A Hale, and J. O. Fife, for defendant in error.

OPINION

MCELROY, J.:

This action was brought by Reuben W. Sawyer, defendant in error, against the Kansas City Car and Foundry Company, plaintiff in error, to recover for personal injuries received by him, resulting from the alleged negligence and carelessness of the company.

The plaintiff alleged, in substance, that on September 13, 1894, he was in the employ of the foundry company as a carpenter, under the direction of one John Girard as boss carpenter; that at the time of receiving the injuries Girard ordered him to perform certain work which was under the immediate supervision and control of one Warnick, an employee of the defendant company; that in performing the work which he was directed to do, upon a scaffold about sixteen feet high, the brace by which the scaffold was held up broke and precipitated him to the ground, whereby he received great injury; that the brace which held up the scaffold was insufficient in strength, and had a large crack and knot therein, which rendered it insufficient to bear up the burden placed thereon and caused it to break; that the scaffold was erected by the defendant company, and that its condition was unknown to the plaintiff, but was well known to the defendant, or by the exercise of ordinary care could have been known and remedied by the defendant; that the plaintiff had no opportunity to examine the brace, but relied upon the statement of the defendant that he was to obey the orders of Girard and Warnick; that the plaintiff, obeying orders, and in the discharge of his duties, climbed upon the scaffold, and the brace broke because of its condition and precipitated the plaintiff to the ground, by which his leg, foot, ankle, knee, hip, back, shoulders and breast were bruised, mangled, and wrenched, thereby causing him to suffer great mental and physical pain and to become a cripple for life.

The defendant's answer was (1) a general denial; (2) an allegation of contributory negligence. The reply was a general denial. A trial was had before the court and jury upon the issues thus formed. The defendant interposed a demurrer to the plaintiff's evidence, which was overruled, the defendant excepting. The jury found for the plaintiff and assessed his damages at $ 1200. A motion for new trial was filed and overruled, and the case is presented to this court for review.

Complaint is made, first, that the verdict is not sustained by sufficient evidence and is contrary to law. The plaintiff in error submits and argues these propositions, with many authorities to support the same:

"1. Where a master engaged in the erection of a building furnishes materials for the construction of necessary scaffolds used in the work, which materials are in a pile of materials of various kinds, some of which are suitable and others not suitable for such use, and the selection of the materials to be used in the scaffold is left to the men engaged in constructing the building, is the master liable for an injury to one of the men engaged as carpenter upon the building being erected, where some one of his colaborers or fellow servants, in making a selection of a piece of timber, selects a defective one, which, when placed in a scaffold, breaks, and causes the injury complained of?

"2. Has not a master who is constructing a building, where in the process of construction it is necessary to have scaffolds upon which the carpenters are to work, discharged his full duty to such employees when he has furnished sufficient suitable materials from which proper timber might be selected for such purpose, and has left the construction of the scaffold to the men engaged in the work?"

These propositions do not fairly present the case. They assume facts which are not...