The Riverside Iron-Works Company v. Green

• Decision Date: 06 March 1909
• Docket Number: 15,701
• Parties: THE RIVERSIDE IRON-WORKS COMPANY v. GEORGE K. GREEN
• Court: Kansas Supreme Court

100 P. 482

79 Kan. 588

THE RIVERSIDE IRON-WORKS COMPANY v. GEORGE K. GREEN

No. 15,701

Supreme Court of Kansas

March 6, 1909

Decided January, 1909.

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

STATEMENT.

A SPAN of the Kansas City Southern Railroad bridge crossing the Kansas river was washed from its piers by the flood of 1903. The Riverside Iron-works Company was engaged in replacing it. In so doing the company employed a number of workmen--some iron-workers and some painters. Green, the plaintiff, was one of the painters. The painters would climb about the span which was of steel, and, as it was elevated above the water would scrape off the old paint, and put new paint on its various parts from day to day. In going to and fro from the top of one of the piers of the bridge to the span on which they were working the workmen used a wooden plank about twelve feet long, twelve inches wide and two inches thick, so placed that one end thereof rested upon the pier, which was constructed of concrete, and the other end rested upon the steel framework of the span. As the span was elevated the end of the plank resting thereon was lowered from time to time so that the incline of the plank was somewhat changed, and at the time of the accident the end of the plank upon the pier was three or four feet higher than the end which rested on the span. Immediately prior to the accident the plaintiff had been working there and crossing over this plank several times a day for about ten days. The plank was about twenty-five feet above the surface of the river, and the end resting upon the pier extended upon the pier about a foot and a half or two feet. It was not fastened at either end, and had not been, and there was nothing to prevent the plaintiff from seeing this. There were no ropes or guide-rails placed along the sides of the plank.

On the day of plaintiff's injury he went across this plank from the span to the top of the pier to eat his noon lunch, and as he was in the act of stepping from the plank to the pier the end of the plank moved or slipped slightly, so that he lost his balance and fell, receiving the injuries complained of.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Injury to Employee--Assumption of Risk. Where a painter by trade, of mature age, accepts an employment which requires him and many other employees, in going to and from their work, to pass (at an elevation of twenty-five feet) over a gangplank twelve feet long, twelve inches wide and two inches thick, supported at one end by a steel frame and at the other by a concrete abutment to a bridge, and, without complaint, he continues in such employment ten days and passes over such plank several times each day, and has full opportunity to see that the plank is entirely unfastened at either end, held, he has as full knowledge of any danger from such crossing as has his employer, and, by continuing in the employment, he assumes the risk of danger therefrom.

William Warner, O. H. Dean, W. D. McLeod, and H. C. Timmonds, for plaintiff in error.

George R. Allen, and J. W. Dana, for defendant in error.

OPINION

SMITH, J.:

This action was brought against the Riverside Iron-works Company and one Hedrick, the foreman of the company. The negligence complained of was in placing and maintaining the plank to be used as a gangway without permanently fastening it so that it could not move or shift in being so used, and in failing to provide any guard- or hand-rail for the protection of workmen in crossing the gangplank. The defense was a general denial, assumption of risk, and negligence of coemployees. The reply was a general. denial.

At the close of the plaintiff's evidence the company and the foreman separately demurred to the sufficiency thereof. The court sustained the demurrer as to the foreman, and overruled it as to the company. The company stood upon its demurrer and offered no evidence. The verdict and judgment were against the company, for $ 600.

Much of the brief of plaintiff in error is devoted to the discussion of its contention that, as it was charged with negligence only through its foreman, Hedrick, a judgment in favor of the foreman debars any recovery from his principal. Where the negligent act which causes the injury is done in violation of the orders of the master, as in Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649, the master's liability in damages arises only from the doctrine of respondeat superior. Where, on the other hand, an employee is injured through some omission to provide for the safety of employees, as to furnish safe appliances for their work or a safe place to work, the master may be liable independently of an act or omission of his foreman. (See Emporia v. Kowalski, 66 Kan. 64, 71 P. 232.) It is sufficient in this case to say that the evidence does not disclose a state of facts which hinges the liability of the master upon the doctrine of respondeat superior.

We pass then to the only other question which we deem necessary to consider, viz., Did the plaintiff assume the risks incident to using the gangplank in question? He was a man about twenty-four years of age, a painter by trade, as he said a "construction painter," which would indicate that he was accustomed to working and walking upon scaffoldings and the like at exposed elevations. He had worked upon this bridge span for ten days, and had passed up and down this gangplank more than two times a day. The gangplank, one end of which rested upon some part of the steelwork and the other end upon a concrete pier of the bridge, was fully exposed to the view of any person passing over it, and was so simple a device for the purpose for which it was used and so easily comprehended that it seems that any workman of the plaintiff's experience must have at once comprehended any danger that might arise from passing over it. In regard to the situation the plaintiff testified as follows:

"Ques. And the slope or slant of the board was about the same the day you were injured that it was prior to that? Ans. Well something like that, as near as I can remember.

"Q. You knew that the top of this board rested upon the concrete pier, did n't you? A. Yes, I knew it was on the pier.

"Q. And you also knew, did you not, that the top of that board could not be nailed to the concrete pier, did n't you? A. Well, I did n't know how it was fastened, there was not anything to--

"Q. Did n't you know it was n't nailed into the concrete pier; did you not know that nails were not driven through the board and into the concrete? A. Well, I did n't know how they had it fastened, as far as that, there was never anything to call my attention to it, I did not pay any attention.

"Q. Did you know whether or not the bottom of that board was nailed into the iron chord? A. No, sir; I did n't know.

"Q. You did not know whether there were or were not nails driven through this board and into the concrete pier at the top, did you? A. No, sir.

"Q. You had, for ten days, gone up and down that board at least four times, and never at any time paid any attention as to how it was fastened--whether...