56 Kan. 344 | Kan. | 1896
: On January 14, 1890, Fayette Vincent, -who was a section hand in the service of the Atchison, Topeka & Santa Fe Railroad Company, had his leg broken while repairing a railroad track. He claimed that the injury -was the result of the negligence of McCandless, the foreman of the crew, and he brought this action against the company, in which he recovered $3,000 as damages for the injury which he sustained. The only substantial question presented for review is 'whether there is sufficient testimony to support the recovery.
It appears that there were but three men in the crewq McCandless, the foreman, Oswald, and Vincent. The foreman had received directions to remove a defective rail in the track at Alden and replace it with a sound one. There was a pile of rails of varying lengths near the track, resting on ties, to which some of the rails liad been spiked. The ends of the rails were under and against the tool house. Two rails had been taken from the pile to the point where the new' rail was needed on a hand car, neither of which was found to be suitable, and then the men returned to the pile of rails and found one determined to be suitable, which was 14 feet long and weighed about 243 pounds. There is testimony that McCandless proposed to carry it on their shoulders. The rail was shoved out, and one end of it was placed on the left shoulder of Oswald, the other end was placed on Vincent’s right shoulder, and McCandless then passed to the center of the rail and supported it with his left shoulder. The pile of rails being upon the right of Vincent, he was unable to take a position upon the
It is contended that Vincent was guilty of contributory negligence because the rail was carried upon their shoulders instead of upon the hand-car, which was the usu,al method of transporting rails. The testimony is, however, that the rail was carried in that way by the direction of the foreman, and in view of the fact that the rail was a short and a light one it can hardly be regarded as a specially hazardous or negli
It is said that if Vincent had carried the rail upon his left shoulder instead of upon his right the accident would not have occurred, but the peculiar situation of the pile of rails from which the one carried was taken sufficiently accounts for placing it upon Vincent’s right shoulder. The injury resulted from the precipitate action of the foreman rather than from the manner in which Vincent happened to carry the rail. The foreman was in charge of the work and authorized to give directions as to the method of doing it. He assisted in placing the rail on Vincent’s shoulder, and he gave the word to throw before Vincent had reached a place of safety. The dispute in the testimony as to whether there was sufficient time for Vincent to step aside and out of danger after he was relieved from the weight of the rail has been settled by the jury, and, as before stated, there is sufficient testimony to sustain the finding. The service in which Vincent was engaged was performed on the company’s road, and, being necessary to its use and operation, places him within the provisions of the act which makes railroad companies liable to their employees for damages resulting from the negligence of a coemployee. (U. P. Rly. Co. v. Harris, 33 Kan. 416 ; A. T. & S. F. Rld. Co. v. Koehler, 37 id. 463.)
Objections are made to some of the special findings returned by the jury, but we find nothing in them that betrays partiality or prejudice, nor anything which would justify a reversal.
The judgment will be affirmed.