34 Kan. 326 | Kan. | 1885
The opinion of the court was delivered by
The principal facts brought into this case by the parties, and upon which the plaintiff’s cause of action is to be sustained or defeated, are substantially as follows: During the month of November, 1881, and prior thereto, the plaintiff, Isaac J. Ledbetter, was in the employment of the •defendant, the Atchison, Topeka & Santa Eé Railroad Company, as a yard switchman at Emporia, Kansas. At that point the defendant had two yards, one at the junction of the M. K. & T. Railway with the Atchison, Topeka & Santa Fé Railroad, and called the “upper yard,” and the other about •one mile west from there, and called the “lower yard.” There
The defendant also had car repairers and many other employés at those two yards. In the afternoon of November 11, 1881, the plaintiff coupled the switch engine to the west end of a Vandalia stock car, which was then standing on a track in the lower yard and contained sheep, and the engine and car were then taken to the stock chute in the upper yard, and there the brakes of the car were set and the car left to be unloaded. On the next morning, November 12,1881, the plaintiff coupled the same engine to the same end of the same car, the car at the time standing at the same place and in the same condition at which and in which it was left the day before. The car was then removed and placed on a side track. The engine was then taken around to the other end of the car and was backed toward the car, the tender being between the engine and the car, and the plaintiff stood on the foot-board of the tender, and when the tender came near the car he proceeded to couple them together. When the draw-bar, or draft-iron as it is sometimes called, of the tender struck the draw-bar or draft-iron of the car, the draw-bar of the car was pushed under the dead-wood of such car, without shock, collision or stroke, and the plaintiff was caught sidewise about the hips,
The plaintiff said nothing at the time about being squeezed, or hurt, or the car being out of order, and the engineer, fireman and foreman of the yard gang, who were present at the time, had no knowledge of the same. The plaintiff then got off the foot-board of the tender and sat down upon the sidetrack near by for a few minutes, and then got on the foot-board of the tender again and rode from that place down toward the lower yard to Commercial street, in the city of Emporia, where he left the engine, tender and car with the engineer, fireman and foreman, who accompanied him from the upper yard, and walked to his home in Emporia, a distance of three or four blocks. What was afterward done with the car is not shown. When the plaintiff arrived at his home, he lay down until dinner. He examined his person and found some bruises upon his hips. He got up and ate his dinner, and then lay down again until three o'clock in the afternoon, when he went back to the yards and worked till night. He worked the rest of the month of November for the defendant, and all the month of December, except the period between Christmas and New Year, when he was given a vacation, and all the month of January, and quit work for the defendant in February, and went back to his old home in the state of Illinois. Afterward he returned to Kansas, and, after working for two or three different railroad companies, commenced again on September 17, 1882, to work for the defendant, at Emporia, and afterward worked for the defendant at Argentine, commencing about December 20, 1882. He worked for
The plaintiff testified that during all the time from the time when he received the injury at Emporia, on November 12, 1881, down to the time of the trial, he had suffered from the effects of such injury, and that he was often sick and unable to work. But at no time did he consult a physician with regard to such injury, and he was at no time treated by any physician for such injury; but the treatment that he received from the various physicians who at various times prescribed for him was all for malaria, bronchitis, and loss of voice. He did not at any time consult the defendant’s physician and surgeon at Emporia. He did not mention the injury to the engineer or fireman who had charge of the switch engine which was used at the time of the injury, nor to his foreman, nor to any other one of the company’s employés at Emporia. In his testimony he stated that he mentioned the matter to his foreman, but the jury found against him on this subject. He did not inform the car repairer at Emporia, or make any report that anything was wrong or out of order with regard to the Vandalia stock car, from which he states he received the injury, although it was his duty to do so, if in fact the car was out of order. He did hot in fact at that time, nor for many months afterward, inform any employé, agent or officer of the defendant that there was anything wrong concerning such stock car, or that he had received any injury therefrom. He made no claim upon the defendant or any of its officers or agents for damages for the alleged injury, until sometime in August, 1882, about nine months after the injury is alleged to have occurred. And neither the engineer of the switch engine which was used in making the coupling at the time when the
The jury rendered a verdict in favor of the plaintiff and against the defendant for $5,000. The defendant then moved for a new trial upon various grounds, among which was the ground “that the said verdict is not sustained by sufficient evidence, and is contrary to law.” The court overruled the motion for a new trial, and rendered judgment upon the verdict in favor of the plaintiff and against the defendant for $5,000 and costs. The defendant now seeks to have this judgment reversed.
In the examination of the questions involved in this case, we shall assume that the draw-bar of the Vandalia stock car, or something connected therewith, was out of order; but in what the defects or imperfections consisted, or what was their nature or character, no one can tell nor even imagine, unless he wanders into the uncertain regions of conjecture and speculation. This indefiniteness and uncertainty, however, can probably make but little difference, if the defects or imperfections themselves can be traced with reasonable directness and certainty to the negligence of the railroad company. We shall also assume that the plaintiff received injury by reason of the imperfect action of the draw-bar and its accompanying appliances. But this assumption is also open to criticism and to doubts and uncertainties. But assuming that the draw-bar for some reason failed to operate as it should, and that the plaintiff was injured in consequence thereof: do these things make out a cause of action in favor of the plaintiff and against the defendant? We think not. A railroad company is not
“One railroad company receiving a loaded car from another, and running it upon its own road, is not bound to repeat the tests which are proper to be used in the original construction of such a car, but may assume that all parts of the car which appear to be in good condition, are so in fact.” (Ballou v. C. M. & St. P. Rly. Co., 54 Wis. 257; same ease, 11 N. W. Rep. 559; same case, 5 Am. & Eng. Rld. Cases, 480.)
In support of the propositions enunciated in this case, we would refer to the following cases: The A. T. & S. F. Rld. Co. v. Wagner, 33 Kas. 660, and the numerous authorities there cited. See also Case v. C. R. I. & P. Rld. Co., 21 N. W. Rep. 30; same case, 19 Am. & Eng. Rld. Cases, 142; Disher v. N.Y. C. & H. R,. Rld. Co., 15 Am. & Eng. Rld. Cases, 233.
The judgment of the court below will be reversed, and the cause remanded for a new trial.