Smith v. Hines

Citations

• 108 Kan. 151
• 194 P. 318
• 1920 Kan. LEXIS 575

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>I. Master and Servant — Use of Defective Scaffold — Scaffold Erected Under Direction of Foreman — Rule as to Assumption of Risk. The rule, that where one uses a tool or appliance, simple in construction, without protest or objection he cannot be heard to complain of an injury which occurs while he is using it in the ordinary manner, held not to apply, in an action under the Federal employers’ liability act, where a workman was injured by the fall of a scaffold on which he was at work and which was erected under the direction of the gang foreman.</p> <p>2. Same — Defective Appliance — Servant’s Knowledge of Danger■ — Question for Jury. Following Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105, held, that it cannot be said as a matter of law either that the danger was so obvious that the plaintiff must have known of it, or that it was so remote that the defendant could not be charged with knowledge of it, and that both questions were for the jury.</p> <p>3. Same — Instructions. On the facts stated in the opinion it is held that it was not error to refuse to instruct that the mere fact of the happening of the accident would not sustain a finding of negligence.,</p> <p>4. Same — Findings Not Contrary to Evidence. Certain answers to special findings considered, and held not to be contrary to the evidence.</p> <p>5. Same — Nature of Servant’s Injuries — Verdict Not Excessive. The plaintiff’s injury resulted in producing a facial deformity. The skull</p> <p>. was broken, leaving a protuberance over one eye, and crowding the nose to one side, leaving the eyes crooked and the vision impaired. Held, that a verdict and judgment for $11,700 is not excessive.</p> <p>6. Same — Verdict—Not a Quotient Verdict. On the facts stated in the opinion it is held that the verdict returned was not a quotient verdict and that there was no error in refusing to set it aside on that ground.</p>