Orr v. Ellsworth-Klaner Construction Co.

The opinion of the court was delivered by Johnston, C. J.: In this action I. N. Orr sought to recover damages from The Ellsworth-Klaner Construction Company and R. H. Sturgeon for injuries sustained while in the company’s employ. From a judgment against it for $2750 the company appeals. The Ellsworth-Klaner Construction Company was engaged in stripping and mining coal with steam shovels near Chicopee, Crawford county. The coal was loaded upon cars which were pulled on a track up an incline about two hundred twenty-five feet long, extending from the pit to a platform or tipple, which was about twenty feet above the level of the ground. These cars were drawn and controlled by a stationary steam engine located near the tipple with a three-eighths-inch wire cable several hundred feet long extending from a drum connected with the engine through a pulley at the tipple and along the track into the pit, and by this means cars were drawn from the pit to the tipple and after being dumped were lowered again to the pit. On the incline was a switch to divert the empty cars from the way of the ascending loaded cars. On February 28,1913, plaintiff, in the course of his employment as trackman for defendant company, was ordered by the company’s superintendent to make certain repairs upon this switch. He alleged that while so engaged R. H. Sturgeon, who was then employed by the company as its engineer, suddenly started the engine and violently tightened the cable, which was connected with a string of derailed cars at the bottom of the incline and lying with quite a little slack in it between the rails of the track. This caused it to fly up and strike plaintiff across the breast and arms with such violence as to break and unjoint his left arm and throw him from the incline to the ground, a distance of about ten feet, and to severely bruise him about the body, limbs and head. Plaintiff further alleged that his injuries were permanent and caused by the negligence and carelessness of the defendants: of the company because the place in which he was required to work was unsafe and in failing to warn him of the starting of the engine, in causing through its [715] employees the cable to be suddenly drawn taut, and in keeping R. H. Sturgeon in its employ when it knew he was careless and incompetent; and of R. H. Sturgeon in recklessly, carelessly and negligently starting the engine and jerking the cable. Damages in the sum of $7500 were asked. The answer of defendant company was a general denial. The demurrers of defendants to plaintiff’s evidence were overruled and the jury’s verdict was in favor of defendant R. H. Sturgeon but against the defendant company which appeals. Complaint is made that counsel for plaintiff were permitted to inquire of jurors while they were being examined as to their qualifications if they had any connection with a certain surety company and, if so, whether it would affect their verdict if it should appear that the defendant carried a policy in that company. In each case a negative answer was given. This action is assigned as error on the ground that it was prejudicial to defendant, but the point is not argued in defendant’s brief. The scope of such an examination must largely be left to the discretion of the trial court, and it can not be said that there was an abuse of discretion in this instance. (Swift v. Platte, 68 Kan. 10, 74 Pac. 635; Manufacturing Co. v. Bloom, 76 Kan. 127, 90 Pac. 821.) The principal contention is that the evidence is insufficient to show negligence on the part of the company, and it is therefore contended that the demurrer to plaintiff’s evidence should have been sustained and its motion for judgment nothwithstanding the verdict should have been upheld. It is further contended that the finding of the jury that Sturgeon was not negligent towards the plaintiff nor responsible for the injury argues that the company itself was not negligent. The plaintiff did not base his right of recovery on the negligence of Sturgeon alone, who was charged with suddenly and recklessly starting the engine while the plaintiff was in a place of danger and without any warning that would enable him to reach a place of safety, but he also charged the company with negligence in failing to furnish him a safe place to work, reasonably careful and competent fellow servants with whom to work, and to warn him of impending danger. The plaintiff was sent into a place of danger to repair the tracks, and it appears that the superintendent had informed the plaintiff [716] that the cable would not be used or the cars moved while he was in that place. Sturgeon, it appears, did not know that the plaintiff was at work on the incline and he started the engine upon a signal of other employees. The jury concluded that as Sturgeon could not see the plaintiff at work but acted on the signals of another he was not guilty of negligence or' personally responsible for the injury that was inflicted. The plaintiff could not safely repair the switch and track while the cable was being used and the cars moved. The company itself recognized this to be so as the superintendent had informed plaintiff that operation of the cable and cars would cease while he was at work and he had directed the employees in charge of the cars and cable not to move them during the time he was at work. It devolved on the company to use reasonable care to make the incline a safe place for the plaintiff to work. The duty was a continuing one which could not be so delegated as to relieve the company from the result of nonperformance. The employees who were entrusted with the giving of signals and warnings to the engineer or those having charge of the cars and cable were performing the functions of the master, the duties of the company itself, and for their negligence the company is responsible. (Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856; Crist v. Light Co., 72 Kan. 135, 83 Pac. 199; Schwarzschild v. Weeks, 72 Kan. 190, 83 Pac. 406, 4 L. R. A., n. s., 515; Carillo v. Construction Co., 81 Kan. 823, 106 Pac. 1050; Iliff v. Cudahy, 83 Kan. 588, 112 Pac. 165; Griffin v. Brick Co., 84 Kan. 347, 114 Pac. 217; Kreigh v. Westinghouse & Co., 86 Kan. 838, 122 Pac. 890; Henry v. Boiler Works, 87 Kan. 571, 125 Pac. 67; Seward v. Cold Storage Co., 89 Kan. 344, 131 Pac. 568; Barnett v. Cement Co., 91 Kan. 719, 139 Pac. 484.) No warning was given the plaintiff that the engine was about to be started, and, as we have seen, the engineer, who could not see plaintiff, relied on the signals given by other employees, and if a warning to plaintiff was necessary it was unquestionably the duty of the company to give it. It can not be relieved from responsibility for the failure to perform that duty even though it had directed its employees to give warnings and safeguard the plaintiff while at work. “Such a duty is nondelegable, and the employer is liable for the results of neglecting it, irrespective of any question of fellow service.” (Seward v. Cold Storage Co., 89 Kan. 344, 346, 131 Pac. 568.) [717] The positive duty owed to plaintiff was to use reasonable care to furnish him a safe place to work, safe appliances with which to do his work, careful and competent employees with whom to work, and to give warnings and furnish all reasonable precautions necessary to his safety while he was in the place of danger, and if warnings were necessary to his protection the company was liable for failure to give them even if competent employees had been provided by the company for that purpose. It is easy to see that the duty devolved upon the company differed in kind from that resting on the engineer who started and stopped the engine upon signals given by others and who is not responsible for furnishing a safe place for the plaintiff to work, and a finding that he was not negligent does not exonerate the company for its failure to perform the duty imposed on- it as master. The judgment is affirmed.