The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-06-14
No. 16.

William A. Maib, Appellant,
The Aetna Mill & Elevator Company. APP
Appeal from Sumner County.
REVERSED.
syllabus. By the Court. Burch T.
A mill company desired to remove a
Corliss engine weighing 5000 pounds our
or the mill basement and across a street
occupied by railroad tracks laid in a cut.
A wooden trestle was constructed upon
which the engine was moved and upon
assist in moving it, The trestle was built
py miller and number of men en-
ployyed in various capacities. about the
material supplied by the company. The
men were allowed no discretion as to the
plan Of the structure. the selection Of the
material OF the adjustment of the pieces
Every detail of the work was performed
under the authority. direction and con-
owing to faulty construction and one Of
jured. Held:
1. Liability on the part of the COM
pany for the injury can not be predieated
upon the superior rank and authority of
the miller but must rest upon the breach
2 The duty of the master depended
upon what it undertook to do and did do
the removal of the engine and left it's en-
ployees free to exercise their own judg-
ment and discretion and produce the uIti-
consisted in furnishing sufficient sound
material and competent servants If the
master reserved to itself the erection of
the trestle and undertook to supply
completed structure for use by those who
were to move the engine, the duty con-
siste~-- N using reasonable care to make
the trestle reasonably safe for the purpose
it was designed to subserve.
3. The question which of the two
courses indicated was adopted was one of
fact to be determined from the evidence
4. In determining question of this
n11a Fa0 orr thn flT dar Hans
are, the nature of the structure, the pur-
pose it subserves, the necessity or other
tions of the workmen for the service re-
quired the relation of the work to their
usual employment, the extent to which
responsibility and the freedom of choice
permitted them as to plan and method
and means and result.
5. Under the facts outlined above and
others stated in the opinion a jury might
reasonably infer that the mill company
workmen for use as completed struc-
ture.
All the Justices concurring.
A true COPY.
Attest: d. A. VALENTINE.
ISeal.] Clerk Supreme Court.
No. is,5aI.es -; 5--- ~
Appellees. - y,
The Fredonia Gas Company, a Corpora
-.--A.s ar ton, Appellant. --94
Appeal from Wilson County. -.roa
AFFIRMED.
Syllabus. BY the Court. Mason. ].
!. A provision of written contract
that one party shall drill certain number
of wells and in case gas is found in any
or all of them in paying quantities. the
other party shall own and possess such
well or wells by paying the cost of drill
ing the same, implies that a payment is
due whenever a paying well has been
drilled.
q Where under such contract a pay
haS dtfa lint rtx 10
therefor refuses to make it. contending
that nothing need be paid until all the
to receive it has a right to abandon fur
Their work and sue for that already done,
6. Such an action is one upon the con-
able thereto is that relating to agree
merts in writing.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[SeaLl Clerk Supreme Court.