Toomey v. Wichison Industrial Gas Co.

• Decision Date: 07 November 1936
• Docket Number: 32965.
• Citation: 144 Kan. 534,61 P.2d 891
• Parties: TOOMEY v. WICHISON INDUSTRIAL GAS CO. et al.
• Court: Kansas Supreme Court

61 P.2d 891

144 Kan. 534

TOOMEY v. WICHISON INDUSTRIAL GAS CO. et al.

No. 32965.

Supreme Court of Kansas

November 7, 1936

Syllabus by the Court.

Verdict for foreman of gas company engaged in installing connections in building, who was injured through alleged negligence of employees of competing company engaged in removing connections, held without support, in view of special finding that foreman knew what was going on and appreciated danger.

Foreman of gas company engaged in installing connections in building was mere licensee in relation to competing company engaged in removing connections, and extent of duty of competing company was to refrain from willfully injuring foreman.

1. In an action for damages for injuries sustained by plaintiff the record examined, and it is held that, under the special findings of fact and the pertinent law governing defendant's duty toward the plaintiff under the circumstances stated in the opinion, the defendant breached no duty to the plaintiff, and the general verdict and judgment in his favor had no basis on which to rest.

2. Under the facts stated in the opinion, at the time and place where plaintiff was injured, his status in relation to defendant was that of a mere licensee, and the extent of defendant's legal duty was to refrain from willfully injuring him.

Appeal from District Court, Sedgwick County, Division No. 4; I. N Williams, Judge.

Action by John D. Toomey against the Wichison Industrial Gas Company and another. From a judgment for plaintiff, defendants appeal.

Reversed and remanded, with instructions.

Arnold C. Todd, Ralph Gore, and Kurt Riesen, all of Wichita, for appellants.

J. B Patterson and Jesse D. Wall, both of Wichita, for appellee.

WEDELL Justice.

This was an action for damages for injuries sustained by plaintiff in the basement of a business building in Wichita.

There are two competing gas companies in Wichita, the Wichison Industrial Gas Company and the Wichita Gas Company. For some time prior to May 1, 1934, the former had been supplying gas to the business house of the Rorabaugh Dry Goods Company under a contract which expired on that date. The Wichita Gas Company was under contract to supply gas to the Rorabaugh Company, its services to commence as soon as its gas connections and meters could be installed, after the retiring gas company had detached and removed its meters and related equipment.

Plaintiff was the foreman of the Wichita Company. One Walkley was foreman of the Wichison Company. On the morning of May 1 Walkley and three workmen went to the basement of the Rorabaugh building and commenced to disconnect and remove the equipment of the Wichison Company. Shortly thereafter this plaintiff and four workmen also went to the basement and commenced such preliminary work as was practical to do, so that the interruption of the gas supply for the Rorabaugh building in changing the service from the one gas company to the other would be as brief as possible.

There was nothing about this work that was new or strange to the two foremen or to the crews of men working under their direction. Both foremen and crews had done this sort of work frequently. Good feeling prevailed between the foremen and their crews; and they were accustomed to co-ordinate their work in changing the services of their rival employers.

The basement of the Rorabaugh building had two rooms, perhaps more. We have not been furnished with any sketch, as authorized and invited by rule 6 (e), to aid us in visualizing the locus in quo; and the descriptions of the situation which appear in the record are somewhat difficult to follow. However, it does appear that in the west one of those basement rooms was situated a gas boiler. It was fed through a large pipe which passed through a partition wall and projected several feet into another room in the east, sometimes called the laundry room and again called the meter room. This pipe was up near the ceiling but had no support from it. There was a cement ledge on the south or southeast corner of this room on which the gas meters were placed. By suitable angular and other connections the pipe projecting from the boiler room was attached to the meters, but in that system of connections there was an intermediate device called a regulator or steam control valve. This was a metal contrivance which weighed about 380 pounds. On the underside of this mechanism was an unattached piece of two-inch pipe which served as a prop and which rested on the cement ledge. When in running order, the regulator was supported on one side by its L connection with the large pipe which came through the partition wall and on the other side by flanges and other devices connecting it with the meters. There were, however, no ceiling supports for this regulator or its attachments.

About the time the meters and related fixtures of defendant had been detached, this plaintiff was standing about eight feet away from any work being done by defendant's workmen. He was facing eastward and watching the construction of some scaffolding by his own crew. Suddenly the prop which supported the regulator slipped and that contrivance swung downward, taking the direction of an arc of a circle whose center was the pipe projecting from the boiler room. The plaintiff was struck on the foot, knocked down, and injured.

Plaintiff brought this action against the Wichison Industrial Gas Company and Walkley its foreman, pleading the pertinent facts and charging them with negligence in dislodging the two-inch pipe which supported the regulator, and that they did so knowingly, "recklessly, carelessly, wantonly and willfully," whereby the regulator was caused to fall and inflicted the injuries on plaintiff.

The Wichison Industrial Gas Company answered with a general denial, traversed various allegations of the petition, and alleged that: "*** The plaintiff in his capacity as an employee of the said the Wichita Gas Company knew or should have known and observed the construction and location of the governor-regulator and service pipe line of the Rorabaugh Dry Goods Company as he stood in the basement rooms of said Dry Goods Company, as alleged in his petition, and as the result thereof the said plaintiff had equal opportunity with that of the employees of this defendant to know whether said governor-regulator of the Rorabaugh Dry Goods Company might move from the place it was stationed and fall to the floor, but notwithstanding that he failed to exercise ordinary care and prudence in protecting himself."

The defendant company's answer continued: "This defendant further alleges that the plaintiff was at all the times alleged in his petition acquainted with the dangerous character of the work and operations described in his petition, being engaged in an occupation which required a similar type of work and operations. That knowing full well the possibilities of injury inherent in such work and operations, as alleged in his petition, the plaintiff voluntarily chose to remain in the position of peril when he should have and could have retired to a safer position until it became necessary for him to enter the premises rightfully and perform his work. That the plaintiff well knew he was under no obligation or duty and had no right to enter or remain upon the premises until this defendant had completed its work of removing its pipe line and gas meters. That the plaintiff through his carelessness and disregard for his own safety contributed directly to his own injury. That knowing the hazards of his position on the occasion alleged in plaintiff's petition and having had sufficient time before the alleged accident to have sought a safer place the plaintiff assumed the risk manifest in the situation and is now without right to complain of injuries sustained through his own choice, carelessness and negligence."

The cause was tried before a jury. At the conclusion of plaintiff's evidence, the defendant company interposed a demurrer thereto. This was overruled, and evidence for the defense was adduced; but no sharp dispute of material fact was developed. In its instructions to the jury the trial court defined the main issue thus:

"The plaintiff is suing both the Wichison Industrial Gas Company and the foreman, Frank S. Walkley, claiming that they were both negligent in dislodging a two-inch pipe standing unsecured under the steam control valve and that the two-inch pipe fell from under the steam control valve, allowing the heavy pipe to come down upon his foot. ***

"The defendants have filed answers denying any liability on their part and deny that they were negligent in any manner and further allege that if plaintiff was

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