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

95 P. 1049, 77 Kan. 642, 1908 Kan. LEXIS 316

• Court: Supreme Court of Kansas
• Decided: April 11, 1908
• Docket: No. 15,462
• Status: Published

Opinion

The opinion of the court was delivered by

Graves, J.:

The plaintiffs are prevented from recovering in this case because of the contributory negligence of the person injured. The facts found by the jury clearly indicate that Charles E. Stone was fully aware of the defective condition of the blow-off pipe when he used it. While there is no direct evidence of this fact, it is beyond the range of reasonable possibility that it could escape his notice. He, better than any other person, had an opportunity to see and know its condition. He had it in his hands and screwed it into the blow-off cock. Its defective condition was open to the casual observation of any person. His duty and safety both required him to examine the blow-off pipe as to its sufficiency. If he did not know, then his want of knowledge was the result of gross negligence, and is unavailing. It was his duty to select a good blow-off pipe, if there was one, and if not, then it was his duty to apply to the hostler for one which was not defective. Not having done this, his use of the defective pipe was voluntary and at his own risk. He was familiar with the work and aware of its danger. It has long been settled by the decisions of this state that a person cannot voluntarily and recklessly place himself in danger, and then shift the responsibility after an injury has been received. (Jackson v. K. C. L. & S. K. Rld. Co., 31 Kan. 761, 3 Pac. 501; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582; A. T. & S. F. Rld. v. Schroeder, 47 Kan. 315, 27 Pac. 965; Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138; S. K. Rly. Co. v. Moore, 49 Kan. 616, 31 Pac. 138; S. K. Rly. Co. v. Drake, 53 Kan. 1, 35 Pac. 825; Railway Co. v. Puckett, 62 Kan. 770, 64 Pac. 631; Walker v. Scott, 67 Kan. 814, 64 Pac. 615; Lanyon v. Bell, 64 Kan. 739, 68 Pac. 609; Gillaspie v. Iron-works Co., 76 Kan. 70, 90 Pac. 760; Railway Co. v. Weikal, 73 Kan. 763, 84 Pac. 720.)

The facts having been fully found by the jury, judgment may be ordered. The judgment of the district court is reversed, with directions to enter judgment for the defendant.