56 Kan. 309 | Kan. | 1896
: I. The court instructed the jury that the conductor, engineer, yardmaster, acting yardmaster, yardmen and yard switchmen were all coemployees of the plaintiff, and that if they believed from the evidence that the inj ury complained of was caused by the negligence or want of ordinary care of any of the coemployees of the plaintiff, then it was their duty to find in favor of the defendant. Yet, in answer to a particular question of fact, the jury stated that the misinformation, orders and instructions respectively given by the conductor and the acting yardmaster to plaintiff' concurrently and proximately caused and materially contributed to the plaintiff’s injury. The plaintiff below introduced in evidence the decision of the supreme court of Missouri in Moore v. Railway Co., 85 Mo. 588, which defines with some particularity who are fellow servants and who is a vice-principal in that state ; but in our view of the case it is immaterial whether the foregoing instruction of the court was justifiable or not under said decision. The blame was laid by the petition and in the answer of the jury upon the acting yardmaster and the conductor, but we are unable' to discover any negligence on their part. They told Carruthers that there was one car to cut out, and that the train would be ready by the time that he got around with the engine. This was doubtless their opinion of the time it would require to accomplish a certain result. After Carruthers had gone on his errand, they found it necessary to adjust two other cars and place them together in the train. "We cannot presume that it was improper or unnecessary to make such adjustment for this would be against the evidence. They did not know that Carruthers
II. It -was claimed by the plaintiff below that the railroad company was guilty of negligence in failing to prescribe proper rules and regulations for notice or warning of the movement and approach of detached cars, and that the injury complained of was the result of such negligence ; and the jury found that this failure and omission of the company materially contributed to and concurrently and proximately caused said injury. The plaintiff below introduced in evidence the decision in Reagan v. Railway Co., 93 Mo. 348, to show that it may be the duty of a railway company to prescribe rules sufficient for the orderly and safe management of its business, and that whether the company was guilty of negligence in failing to prescribe suitable rules was a question for the jury. In that case, however, a demurrer to the petition was sustained. It is nowhere intimated that the jury could pass upon the question without any evidence upon the subject. In the j)resent case no evidence was given tending to show that any notice of the approach of detached cars in railroad yards or in those at Marceline, Mo., would be useful or practicable. It appears to have been the custom to ring the bells of engines while in motion, and whether any warning of the ap
The judgment must be reversed, and the cause remanded for a new trial.