Brice-Nash v. Barton Salt Co.

Per Curiam:

C. Brice-Nash was injured while in the employ of the Barton Salt Company. He sued his employer, alleging his injury to have been occasioned by its negligence. At the first trial a demurrer to his evidence was sustained upon the ground that the negligence shown, if any, was that of a fellow servant. This ruling was reversed on appeal. (Brice-Nash v. Salt Co., 79 Kan. 110 .) A subsequent trial resulted in a verdict against the plaintiff. The court, however, granted a new trial, and the defendant appeals.

The appellant argues the case upon the theory that the verdict was set aside because a juror testified that he had not agreed to it. This testimony was obviously incompetent under the rule forbidding a juror to impeach his verdict by describing his mental operations. (Perry v. Bailey, 12 Kan. 539 .) The appellee, however, asserts that the ruling was based upon the ground of error in the instructions, and this must be assumed to be the case, as there is nothing in the record to indicate the contrary.

While standing near a mass of salt, the face of which *448 had already been considerably undermined, the plaintiff was injured by the fall of a part of it, which he claims was caused by a workman striking it with a pick. Instructions were given to the effect that he could not recover if he knew the salt was undermined, and therefore liable to fall at any time, and with this knowledge he stood where he knew he wo'uld be in danger if it fell. These instructions were open to criticism because they treated the matter as though the salt had fallen by reason of conditions already existing, and made no reference to the act of the workman in picking at it and causing a fall without giving the plaintiff warning — the conduct chiefly relied upon as constituting negligence. The plaintiff, by standing near the salt, knowing its condition, may well be deemed to have voluntarily incurred any danger of its falling of its own weight, but he can not be said thereby to have taken the risk of its being dislodged by the blow of a pick, which he had no reason to anticipate. This defect in the charge justified the trial court in setting aside the verdict. The order granting a new trial 'is affirmed.