Kansas Buff Brick & Manufacturing Co. v. Stark

The opinion of the court was delivered by Benson, J.: The jury, in answer to special questions, found that it was practicable to box, or safeguard, the machinery in question, that the company was negligent in failing to do so, and that such negligence was the proximate cause of the injury. The defendant alleged error in the refusal of the court to sustain its demurrer to the evidence, in denying its motion for judgment, and in denying a new trial. It further insists that the negligence of the deceased directly contributed to the injuries from which he .died, and that the proximate cause of the injuries was such contributory negligence and not the unguarded machinery. The mere fact that this young man was working in the presence of unguarded machinery and amid ob [651] vious perils, plainly apparent to his senses, does not prove that his death was caused by his own want of care, but whether he- in fact exercised proper care for his own safety was a question for the jury, and could not be determined by the court unless the facts were such that reasonable minds would not differ with respect to his negligence. (Cummings v. Railroad Co., 68 Kan. 218, 74 Pac. 1104.) The findings disclose the violation of a duty imposed by statute, and this is prima facie sufficient to establish liability for the injuries resulting therefrom. (Madison v. Clippinger, 74 Kan. 700, 88 Pac. 260; Fowler v. Enzenperger, ante, p. 406.) It is true -that contributory negligence is a defense where liability is claimed under this statute. (Madison v. Clippinger, supra.) This, however, is an affirmative defense (Railway Co. v. Lee, 66 Kan. 806, 72 Pac. 266), and the verdict failed to establish it in this case. The defendant also complains of the refusal of the court to instruct the jury to the effect that it was the duty of the deceased to make use of his senses to discover the dangers about him, and to exercise reasonable care to keep away from the shaft, and that, failing to do so, he could not recover. On this- subject the court gave the following instruction: “I have just indicated to you in general terms that, if the evidence discloses that the deceased was himself guilty of ordinary negligence contributing to his own death, then the defendant is not liable in this action. On that head you are further instructed generally that it was the duty of the deceased to exercise ordinary care and prudence while working in the brick-plant for his own safety and protection, and if he failed to do so, and consequently was killed, then the defendant is not liable, and that is so regardless of the question as to whether the machinery of the defendant should have been safeguarded, as heretofore indicated in these instructions, or not. The court cannot say to you as a matter of law whether in anything the deceased may have done, or failed to do, in his acts and conduct connected with his death, he was, or was not, guilty of [652] ordinary negligence, but that is a question of fact, and solely for your determination.” This was a fair statement of the rule, and we think sufficient. The defendant asked the court to instruct the jury that the deceased assumed the risk of dangers from unguarded machinery open and obvious to his senses. This was refused, and an instruction was given to the effect that assumption of risk was not a defense in such cases. This was in accordance with the decisions of this court, and is the correct rule. (Manufacturing Co. v. Bloom, 76 Kan. 127, 90 Pac. 821, 11 L. R. A., n. s., 225.) Complaint is also made of the refusal of the court to submit various special questions designed to show the knowledge of the deceased of the condition and operation of the unguarded machinery. There was no question of the knowledge of the deceased of these conditions — they were open and obvious, and he was in the enjoyment of the ordinary faculties. These facts must be considered as admitted, and special findings thereon were unnecessary; still, as he did not assume these risks, the fact that they were so known and apparent did not bar a recovery, if the deceased was not wanting in proper care in the situation in which he was placed. The defendant asked this question: “Were any of the employees of the defendant guilty of negligence which contributed to, or was, the approximate cause of the injury to the deceased?” The court changed it thus: “Was the defendant guilty of negligence which contributed to, or was, the approximate cause of the injury to the deceased?” This was a proper correction. The statute imposed the duty upon the corporation to safeguard its machinery, and the failure to do so was the fault of the corporation itself. It was not claimed that the machinery was guarded in any way, but that it was not [653] practicable to do so. It was therefore immaterial what officer or officers or employees were responsible for the neglect. It is argued that this shaft and its pulleys and belts, although unguarded, were not dangerous to this employee while in the discharge of the particular duties devolving upon him; that no duty required his approach to the machinery near epough to become entangled in or caught by it. This, however, was a question of fact exclusively. His work was in the presence of this swiftly revolving shaft, with three pulleys and belts within five feet. In this situation he was required to reach over or above the shaft, or near to it, to thrust his stick into the mass to keep it moving in the spout, then to turn to the mixers close by, and so, attending to the spout and the mixers, give such heed to all his duties as would keep the work in progress without obstruction. In some way, the precise details of which are unknown, he came into contact with the machinery, and lost his life. In the absence of any finding by the jury of negligence on -his part the general verdict, having been approved by the trial court upon sufficient evidence, must be sustained. The judgment is affirmed.