Henderson v. United States Gypsum Co.

Citations

• 84 Kan. 336
• 114 P. 233
• 1911 Kan. LEXIS 326

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury to Employee — Assumption of Risk — Contributory Negligence. In an action for personal injuries the plaintiff’s evidence showed these facts: He was an employee of a gypsum mining company, whose experience enabled him to tell when the roof of an excavation was unsafe, but whose general employment at the time did not contemplate work inside the mine; on the request of another employee he tested the roof of the room in which the latter was working, and found a part of it loose and a part of it sound; he reported this condition to the superintendent, at whose direction he undertook, about an hour later, to remove the loose portion; in the meantime, in the course of the usual mining operation in an adjoining .room, a shot had been fired which had loosened that part of the roof which had previously been sound; without making any further test he began the removal of the part he had already found to be loose, when the entire roof fell in, causing the injury on account of which the action was brought. Held: (1) The plaintiff must be regarded as having voluntarily assumed for the time being the duties of an inspector. (2) The ordinary rule regarding the duty of an employer with respect to providing a safe place in which to work does not apply because the plaintiff was engaged in attempting to make a dangerous place safe. (S) The plaintiff’s omission to test anew the soundness of the roof before beginning work upon it constituted such negligence on his own part as to bar a recovery.</p>