Weber v. Wichita Water Co.

Per Curiam: Appellee recovered damages for personal injuries sustained while removing a casing or pipe with a cylinder point attached from an abandoned well. The grounds upon which a recovery was asked was that appellant did not adopt or provide a safe method of work nor furnish a sufficient number of men to do the work, and that the men provided were not reasonably careful and competent coworkers, and that it did not provide a reasonably safe place at which to work. There was testimony offered that appellee had only worked for appellant a very brief time, had never before lifted such a casing, and that appellant had never moved a casing with a sucker point attached with less than eight or nine men, but had used rollers in moving heavy casings of this kind. Appellee and five others were directed .to carry a casing with a sucker point attached which weighed about eight hundred pounds. The point was perforated and partly [113] filled with sand. It lay near the well in a narrow furrow through sand which had been thrown from the well, and hence those lifting the casing did not have a firm or safe footing, but had to place one foot on the bottom of the furrow and the other against the sloping wall of sand. There were only three men at each end of the casing. Appellee, Terrell and Peterson- lifted one end, and Peterson let go of his hold, throwing the whole weight of that end upon appellee and Terrell, causing a rupture and a severe injury to the abdomen of appellee. It is contended that the evidence did not support the verdict. There is testimony though, tending to show that the appellant did not adopt a reasonably safe method of doing the work, and this is a nondelegable duty of the master, the neglect of which imposes a liability for a resulting injury. (Carillo v. Construction Co., 81 Kan. 823, 106 Pac. 1050.) There was testimony also that a sufficient number of men were not employed to do the work, and one of those employed who was working with appellee was not a reasonably careful coservant. The master owes to the servant the .duty to take reasonable precaution to protect him from injury, and a nondelegable duty of the master is not only to provide a sufficient number of coservants, but to furnish him with reasonably careful coservants. (Schwarzschild v. Weeks, 72 Kan. 190, 83 Pac. 406, 4 L. R. A., n. s., 515; Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990.) It appears that Peterson was a shirking and incompetent workman, and while the testimony showing that his negligence and incompetency was brought to the attention of appellant is rather meager, the jury has found that appellant not only should have known of his incompetency, but that it had actual knowledge that he was a careless and incompetent coservant, and it can not be said that the finding is without support. [114] The objections to the instructions are not substantial, and in view of the testimony and findings it can not be held that the amount of the damages awarded is erroneously excessive. The judgment is affirmed.