Wilson v. Deer, 44509
| Decision Date | 11 June 1966 |
| Docket Number | No. 44509,44509 |
| Parties | Harry W. WILSON, Appellant, v. John W. DEER, Jr., and Ruth Deer, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In ruling on a motion for summary judgment it is no part of the court's function to decide issues of fact-but solely to determine from the record whether there is any genuine issue as to any material fact to be tried.
2. In an action by a farm laborer against his employers to recover for personal injury sustained when operating a grain auger, the record is examined and, as set forth in the opinion, it is held there remained no genuine issue as to any material fact and defendants' motion for summary judgment was properly sustained.
Kenneth H. Foust and John O. Foust, Iola, were on the brief for appellant.
Charles E. Henshall, Chanute, argued the cause and Robert Pennington, Chanute, was with him on the brief for appellees.
This was an action by a farm laborer against his employers to recover for the loss of two fingers while operating a grain auger. Plaintiff has appealed from an order sustaining defendants' motion for summary judgment.
The petition alleged that plaintiff was employed by defendants to do general work and that he did such jobs as were assigned to him. On the day in question defendants employed plaintiff to recover wheat which had been spilled on the ground as the result of a wreck of a railroad car. He was directed to remove all wood splinters and other foreign substances from the wheat and was furnished a grain auger for the purpose of conveying the wheat from the ground to a truck. The auger was not equipped with any type of safety device. Because of defendants' failure to furnish plaintiff with safety equipment when feeding wheat into the auger plaintiff's hand got caught, resulting in the loss of two fingers.
Defendants' answer consisted of a general denial, and alleged contributory negligence and that plaintiff voluntarily assumed the risk involved.
The facts of the case are disclosed in plaintiff's deposition, taken on behalf of defendants.
This deposition disclosed that plaintiff was familiar with machinery, including augers, and that he had used them before; that he was familiar with the opening of the auger through which the wheat was introduced and that he placed the auger in the grain; that he knew where the opening of the auger was located and that he had augered grain before and knew that the wheat was being augered at the time and place in question; that he knew how the auger operated and that the opening thereof was wide open; that he knew the chief danger involved was working around the auger with no guards on it, and that he was willing to work around the auger with no guards on it while standing knee-deep in grain.
Following the taking of this deposition defendants filed a ...
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...especially to someone like Smith who was experienced in the operation and maintenance of the machinery. He relies on Wilson v. Deer, 197 Kan. 171, 415 P.2d 289 (1966). In Wilson, this court affirmed the district court's entry of summary judgment in favor of the Deers, who employed Wilson as......
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