Atchison, Topeka & Santa Fé Railroad v. Sly

The opinion of the court was delivered by Horton, C. J.: This was an action in the court below to recover damages for personal injuries received by James Sly, [734] while employed by the Atchison, Topeka & Santa Fó Railroad Company in papering an ice-house which was being erected at Nickerson. Sly was standing on a scaffold, which fell while he was at work; the scaffold was defective, in that the cross-pieces or braces which held and strengthened it had been sawed off so that the paper might be put on the house, and the cross-piece or brace where the accident happened was not made secure or safe by sufficient props. One Dixon, a carpenter, who was working upon the scaffold, testified — “That he cut off some of the cross-pieces ror braces, and several other workmen also cut off' some; that he stood on trestles below to cut off the cross-pieces or braces; that before these were sawed off,.there was a brace extending from the upright to the cross-pieces or beams to hold them; that when he went to fix the cross-piece or brace that fell, he got a piece two by six inches that was too short; that he put this under the end of the cross-piece or brace temporarily, until he could obtain a piece sufficient to hold it; that while he was hunting for a suitable piece to nail on, Kendall called him away.” Kendall, in constructing the ice-house, represented the railroad company. He was the boss or foreman of the work; he hired and discharged the employés; he kept their time and paid them. (Railway Co. v. Little, 19 Kas. 267; Railroad Co. v. Fox, 31 id. 586.) Sly was a carpenter by trade, but was putting on paper at the time the scaffold fell. We think the court below committed errors in the trial of the case, but under the special findings of fact of the jury, which are supported by the evidence, the errors alleged are unimportant. It appears that Dixon was called away from the scaffold by Kendall, when it was in an insecure condition, and the falling of the scaffold and the injury to Sly resulted from the orders of Kendall, the superintendent or “boss” of the work. The errors alleged in the brief concern the admission of evidence; the refusal to give instructions based upon the opinions in this court of Railroad v. Wagner, 33 Kas. 660, and Railroad v. Ledbetter, 34 id. 326, and the giving of instructions which are alleged to have been too vague and general. The trial court permitted a physician to testify that the in [735] juries Sly received would disable a laboring man from his ordinary pursuits all the way from one-half to total disability. "We are inclined to doubt whether this testimony was competent without a further preliminary examination of the witness, but under the circumstances of the case the testimony was not harmful. Sly was a witness before the jury, and testified in his own behalf. When the scaffold fell, his foot and ankle were hurt —the ankle being dislocated. The jury had full opportunity to observe how much his injuries would disable him in his work. A physician testified that the injuries were permanent; that the ankle-joint was suffering from partial anchylosis, and that there was general atrophy of the injured limb. Dr. Smolt was the only witness introduced upon the part of the railroad company — he is one of the surgeons of the company. He obtained from Sly a history of the case at the time he was injured, but no questions were asked him concerning the injured foot or ankle, and nothing was offered conflicting with the evidence of Sly as to his injuries. Upon the trial, to affect the credit and show the interest of Dr. Smolt, who was a witness for the company, the court permitted upon his cross-examination questions of his efforts to compromise Sly’s claim to be asked. This testimony was competent for the purpose for which it was introduced, but it was not competent as testimony imputing negligence to the company. Therefore, when the company requested the court upon such testimony to instruct the jury that they could not consider it as making the company liable, the instruction should have been given; but the findings of the jury fix the liability of the company upon the fault of Kendall, the superintendent, and not upon the acts or language of Dr. Smolt, and therefore the failure to give the instruction did not affect the jury, or-prejudice the rights of the company. In the Wagner and Ledbetter cases, the injuries attempted to be proved were caused by defects in the drawbars of certain cars; but the railroad company in those-cases had no knowledge or notice of the defects prior to the accidents. [736] In this case the injuries did not result from a secret or an unknown defect, but from the failure to supply a sufficient prop to the scaffold, which was wholly caused by the orders of the superintendent of the work. The defect complained of was the result of the affirmative act of the company through its superintendent. Therefore, the instructions requested were not applicable. FlflxSfiiabuíty of company. While the instructions given were not as full as they ought to have been, and while their language may be criticised, the findings of the jury so clearly fix the liability of the company that the judgment cannot be re-x. j j o versed. (Luke v. Johnnycake, 9 Kas. 511; Edwards v. Porter, 28 id. 700; Woodman v. Davis, 32 id. 344; Salt Works v. Wemyss, 38 id. 482.) There is no complaint that the findings of fact are against the evidence, or that the instructions are erroneous — merely that they are too vague and general. The other errors alleged are too unimportant to require comment. There being no substantial error in the record, the judgment of the district court will be affirmed. All the Justices concurring.