Hill v. Atchison, Topeka & Santa Fe Railway Co.

The opinion of the court was delivered by

Benson, J.:

It is stated by counsel that the demurrer was sustained upon the ground that the danger from the leaky hose was one of the risks assumed by the plaintiff in continuing in the service after he had acquired knowledge of the defect. If this were the only réason for the ruling it could not be sustained. As we view the evidence the complaints made concerning the defective hose and the promise given to replace it presented questions of fact concerning the assumption of risk proper for the findings of a jury. (S. K. Rly. Co. v. Croker, 41 Kan. 747; Andrecsik v. New Jersey Tube Co., 73 N. J. L. 664; Hough v. Railway Co., 100 U. S. 213.)

The vital question is whether, in requiring the use of this appliance after notice of its defective condition, the defendant was guilty of such negligence as afforded the plaintiff a right of recovery for the injuries suffered.

In the absence of wanton or intentional wrongdoing an employer who furnishes defective instrumentalities is liable only where danger to the employee would reasonably be apprehended from their use. If persons of ordinary caution and prudence would not, in the light of the attendant circumstances, anticipate danger from the use of a defective appliance, and' danger is not a natural and probable consequence of such use, liability to an employee for furnishing such an appliance does not arise. On the other hand, it is held that negligence is a ground of action for an injury where it appears that “the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” (Schwarzschild v. Weeks, 72 Kan. 190, syllabus.) It is also held, however, that it is not necessary that the specific injury should have been foreseen; but only an injury of some character. (Railway Co. v. Parry, 67 Kan. 515.) These general principles are supported by other decisions of this court, and the courts of other states, and are stated by text-writers. (Cleghorn v. Thompson, 62 Kan. 727; Railway Co. v. Columbia, 65 Kan. 390; Rodgers v. Railway Co., 75 Kan. 222; Leonard v. Collins, 70 N. Y. 90; McCallum v. McCallum, 58 Minn. 288; Williams v. Railroad Company, 119 N. C. 746; 1 Labatt, Mas. & Ser. § 142; I Thomp. Com. L. of Neg. §§ 57-59; Bishop, Non-Cont. Law, § 691.)

The hose was used to conduct water from the tank to the injector to supply the boiler. If through leakage it should become inadequate for this purpose, an insufficient supply might result and the natural and probable consequences of such insufficiency would be foreseen; but it does not seem reasonable to the court that the formation of ice upon the steps from the spray borne by the wind from the leak was a consequence which, in the exercise of reasonable care and caution, ought also to have been foreseen or anticipated. The hose was under the floor of the cab, a,nd about ten inches behind the steps. Unless blown aside by the wind or affected by the movement of the engine water issuing from the aperture would have fallen harmlessly to the ground. The contention is, and the evidence tended to support it, that the action of the wind upon the water thus leaking from the hose, combined with the freezing temperature, caused the ice to form upon the steps, and that this ice caused the plaintiff to fall. It does not appear that the plaintiff or the engineer apprehended danger to himself from thé imperfect hose; at least, they did not refer to such danger in making their complaint, and it seems fair to presume that they apprehended only loss of power, inconvenience and delay or other like consequences from the failure of the appliance to serve its purpose, and not physical harm. Nor can it be held that such harm ought to have been apprehended by the defendant or its officers having charge of such matters. The conclusion is that a case was not presented upon which a finding for the plaintiff could have been sustained, and that the court did not err in sustaining the demurrer.

The judgment is affirmed.