57 Kan. 148 | Kan. | 1896
There is but little dispute as to the facts of the case, but it is contended that they do not show actionable negligence by the railroad company nor warrant a recovery of damages against it. Three reasons are suggested why a recovery cannot be had : (1) That the car from which Penfold fell was not in the service of the company; (2) that the company-had no notice of the defect in the car nor opportunity to repair it; (3) that it was a sudden and unexpected use of a car of another company ; that the officers and employees who should superintend the condition of cars had no opportunity to observe the defect, and that Penfold himself was the only person who had an opportunity and who should be held to have knowledge of the defect. Although the company did not own the tracks in the lumber-yards, they were used by permission in the conduct of its business, and the compjany was, therefore, required to use the same due care toward its employees as if the tracks had been its own. The company not only had the use of the tracks, but it also had the right to move any cars which were necessary to be moved in order to take out those which were billed and marked for shipment. When the lumber company furnished a list of the cars to be taken, the yardmaster of the railroad company from that list marked the cars that were to be taken, and in that way learned the location of the cars to be moved and which the switching crew must necessarily handle. The defective car belonged to the Missouri Pacific Railway Company and it was only to be shifted to another part of the yards so as to reach the loaded cars behind it.
It is contended that as the company did not own the defective car and had no right to repair the same it
The charge of the court, though somewhat general, presented the law of the case to the jury, and we do not.discover that any prejudicial error was committed in the rulings upon the instructions, nor is there good cause to complain of the refusal to submit special questions to the jury. A large number of questions were submitted, and we think no proper or material question was refused. Nor can we say from the testimony that the amount awarded by the jury is excessive.
The judgment of the district court will be affirmed.