St. Louis & San Francisco Railroad v. Mealman

Citations

• 78 Kan. 496
• 97 P. 381
• 1908 Kan. LEXIS 92

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Injury to Employee — Assumption of Risk. An employee of a railroad company, by continuing to use a defective appliance with full knowledge of its condition, thereby waives the right to recover for an injury caused by such defect, and assumes the risk incident thereto.</p> <p>2. -Promise to Repair Defective Appliance. An employee who has waived the right to recover for an injury caused by a defect in an appliance and assumed the risk, as above stated, will be relieved from such responsibility if he requests the company to repair the defect and receives a promise that the requested repairs will be made, and, because of such promise, remains in such employment.</p> <p>3. -Same. Before such a request and promise will relieve an employee of the assumption of risk, the request must be made for the purpose of securing protection by the employee from apprehended danger to himself, and his continuance in the employment thereafter with the defective appliance must be induced by the promise to repair.</p> <p>4. Railroads — Defective Appliances — Assumption of Risk by Injured Employee. The plaintiff was a section-hand in the employment of a railroad company. With other employees he used a hand-car that had brakes which were so worn and defective as to be practically useless. This defective condition continued for more than two weeks. It was open to ordinary observation, and for this period was well known to the plaintiff. The plaintiff spoke to the foreman about the defect and told him it ought to be repaired. The foreman stated that he intended to repair it, but they would use it without the repairs for the present.' At this time the plaintiff did not regard the defect as dangerous, and his only purpose in calling the foreman’s attention to it was that, if repaired, the car could be handled more conveniently in their work. Some days afterward the plaintiff was thrown from the car and injured. The injury was d :e to the.d