Wise v. Lillie

• Decision Date: 11 February 1911
• Docket Number: 16,862
• Citation: 113 P. 403,84 Kan. 86
• Parties: SHERMAN WISE, Appellee, v. S. MORRIS LILLIE et al. (THE SUGAR APPARATUS MANUFACTURING COMPANY, Appellant)
• Court: Kansas Supreme Court

113 P. 403

84 Kan. 86

SHERMAN WISE, Appellee, v. S. MORRIS LILLIE et al. (THE SUGAR APPARATUS MANUFACTURING COMPANY, Appellant)

No. 16,862

Supreme Court of Kansas

February 11, 1911

Decided January, 1911.

Appeal from Reno district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Injury to Employee--Joint Undertaking. A contracted with B, a salt company, to erect an evaporator system, twenty-five per cent to be paid down, the remainder after its installation and meeting a required test; if not successful, to be removed at A's expense and the twenty-five per cent refunded; the apparatus to be placed on foundations furnished by B, all other labor to be furnished by B. A was to put an expert in charge of the operation of the evaporator system until the test was successfully made. B employed appellee to take instructions from the expert so that he could learn how to operate the plant if accepted, and he was introduced for that purpose to the expert, who for six days directed appellee what to do respecting the operation of the system, when, by the bursting of a boiler therein, appellee was injured. Held that appellee was a servant of A, to whom A owed ordinary care.

2. MASTER AND SERVANT--Continuing Duty of the Master--Inspection of Machinery. An instruction that it was the continuing duty of A to use ordinary care to provide appellee with a safe place in which to work and with safe machinery and appliances, and to make such inspection as a person of ordinary care would under like circumstances, upheld, although it was testified on behalf of A that it was not customary to inspect boilers after they had been shipped by reputable manufacturers, except by pressure, as was done in this case.

3. EVIDENCE--Expert Testimony--Province of the Jury. A witness experienced in handling boilers was asked whether "after having examined the door of this boiler A, and the door after this accident, you can say from your knowledge and experience in the handling and using of boilers if a man in the exercise of reasonable and ordinary precaution could have told this boiler was defective in any way?" to which an objection was sustained. Held, that the question did not call for expert evidence save in the slight degree furnished by the experience of witness in handling boilers, and the ruling was proper.

4. VERDICT AND FINDINGS--Consistency--Permanency of Injuries. The appellee, previously a workman in a mill, was by the injury in question thrown violently to the ground by the explosion and force of escaping steam, pieces of the exploded boiler-head breaking the water pipes above him, thereby releasing the water upon him with great force, so that he was unable to rise; was bruised upon the head, severely scalded, and was in the hospital four weeks and one day, was rendered more nervous than formerly, and has burning and itching from the scald. Held, that although he testified that he was earning the same wages as before in his former employment, a finding by the jury that his injury was such as to prevent him from performing regular labor such as he performed before the injury, taken together with the general verdict in his favor, may and should be harmonized therewith.

5. VERDICT AND FINDINGS--Notice by Master of Defective Condition of Appliances. The court charged that if the unsafe and defective condition of the casting could have been discovered by reasonably careful inspection and vigilance the law would charge appellant with knowledge of such condition. The testimony showed that actual knowledge did not exist, but it was sufficient to support a finding that it could have existed by the exercise of reasonable care. The jury found actual knowledge. The general verdict was for appellee. Held, that such finding may and should be construed as equivalent to a finding that appellant should have had such knowledge, the legal and logical difference between such actual and constructive findings being more technical than substantial.

F. F. Prigg, and C. M. Williams, for the appellant.

Frank L. Martin, for the appellee.

OPINION

WEST, J.:

The appellant contracted with the Carey Salt Company to furnish an evaporator system for manufacturing salt, guaranteeing, among other things, that it should have a certain salt-making capacity when working with ten pounds' pressure. The price was $ 23,200, f. o. b. Hutchinson, including the services of a skilled mechanic to superintend the erection of the apparatus, the foundations to be supplied by the salt company, "all Other labor to be furnished by the owners" (the salt company). Twenty-five per cent was to be paid down and seventy-five per cent thirty days after the completion of a six-days' test, in case such test should show a fulfillment of the guaranty, and in case it should not so show the salt company should be at liberty to refuse to accept the apparatus and should have refunded the twenty-five per cent paid, and the appellant should remove the apparatus at its own expense. The only mention of help to be furnished by the salt company was the one quoted--"all other labor to be furnished by the owners."

The apparatus consists in part of a system of four steam cylinders, or boilers, called "effects," A, B, C and D, into which exhaust steam from the salt company's plant was to be introduced, provision also being made for the introduction of live steam now and then when needed. These "effects," or boilers, could be worked in conjunction, in part or separate, by a valve system so that the pressure on each would be equal.

The amended petition charged, in substance, that on May 29, 1908, the boilers and apparatus had been placed and installed in the salt plant for experiment and trial and demonstration; that the connection between boilers A and B was broken and out of repair, so that A could not be used, and the apparatus would have to be changed in order to operate it upon "the triple effect," and appellee was instructed by the expert in charge to close a valve which permitted the steam to pass from A into the other boilers, and was informed that the expert would open the pipe and allow the exhaust steam to pass first into boiler D, which would thus permit such steam to operate under B, C and D only; that after he had obeyed this instruction the three boilers were thus operated through the night; that immediately before the injury, and eight or ten hours after the triple effect had thus been put in operation, the expert wantonly and unnecessarily opened the live-steam valve, thereby permitting an "unusually, dangerous and excessive" head of steam to be turned into boiler A, which was cold, and disconnected; that the boiler, being constructed of cast iron, was wholly incapable of withstanding the pressure and immediately "exploded and bursted," the entire south end thereof, being the end nearest appellee, blew out with great force, breaking the cast-iron end into many pieces and causing a great quantity of live steam to escape upon appellee, throwing him violently to the floor and against the wall of the building, and that the force thereof was so strong that he was unable to rise; that the explosion blew the pieces of the boiler end against the water pipes above appellee's head, bursting the pipes and permitting the water to escape with great force upon him, so that he was unable to rise until the expert succeeded in turning off the steam and stopping the flow of live steam; that broken pieces of the casting struck appellee on each side of his forehead and on top of his head, and bruised and cut his head, the steam severely scalding him and burning him on his hands, arms, head, back and legs, permanently injuring him, damaging and shocking his entire nervous system, he suffering thereby great physical and mental pain and anguish and becoming thereby permanently nervous, and would be unable in the future permanently to regain his health and physical strength; that appellant knew that the boilers were made of cast iron and that such castings were likely to be defective and improperly cast and their strength not uniform throughout, and knew that they were not intended for, or capable of, holding a head of live steam; that they were defective and improperly made, and insufficient for a head of live steam, all of which could have been discovered by the appellant by reasonable care.

The answer was a general denial and a plea of contributory negligence.

The alleged negligence in turning in the live steam was eliminated by the findings returned by the jury, the result being a finding, in substance, that the appellant was negligent in respect to the casting which burst--that it was imperfectly constructed and that the appellant so knew; that the casting had become weakened by repeated expansion and contraction, due to heating and cooling, and that the cause of the casting exploding was turning live steam into effect A, but that it would not have exploded had it not been imperfectly constructed.

A general verdict was returned in favor of appellee and against the appellant only, other parties having been joined as defendants.

Complaint is made with reference to giving and refusing certain instructions, but owing to the circumscribed elements of negligence to which the jury's findings confine the case it is incumbent upon us to consider only two....