Maib v. Ætna Mill & Elevator Co.

Citations

• 82 Kan. 660
• 109 P. 688
• 1910 Kan. LEXIS 319

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury to Employee — Vice Principal or Fellow Servant — Neglect of Absolute Duty by the Master— Question of Fact. A mill company desired to remove a Corliss engine weighing 6600 pounds out of the mill basement and across a street occupied by railroad tracks laid in a cut. A wooden trestle was constructed, upon which the engine was ' moved and upon which workmen were required to stand to assist in moving it. The trestle was built by a miller and a number of men employed in various capacities about the mill, from an abundant stock of sound material supplied by the company. The men were allowed no discretion as to the plan ■of the structure, the selection of the material or the adjustment of the pieces. Every detail of the work was performed under the authority, direction and control of the miller. The trestle collapsed, owing to faulty construction, and one of the workmen standing upon it was injured. • Held: (1) Liability on the part of the company for the injury can not be predicated upon the superior rank and authority of the miller, but must rest upon the breach of some nonassignable duty. (2) The duty of the master depended upon what it undertook to do and did do in the premises. If it merely directed the removal of the engine, and left its employees free to exercise their own judgment and discretion and produce the ultimate result in their own way, the duty consisted in furnishing sufficient sound material and competent servants. If the master reserved to itself the erection of the trestle, and undertook to supply a completed structure for use by those who were to move the engine, the duty consisted in using reasonable care to make the trestle reasonably safe for the purpose it was designed to subserve. (3) The question which of the two courses indicated was adopted was one of fact, to be determined from the evidence by the jury. (4) In determining a question of this character the important considerations are