56 Kan. 514 | Kan. | 1896
The opinion of the court was delivered by
: John Beaver was employed by the Atchison, Topeka & Santa Fe Railroad Company, at its yards in Chanute, Kan., as a car inspector and repairer. These yards consisted of two main tracks, as well as a number of side-tracks, which were used for switching, making-up and inspecting trains. For some time prior to September 16, 1889, the railroad company had been unloading cinders in the yards for the purpose of raising and ballasting the tracks. The cinders were unloaded between the tracks, after which they were used for the purpose of raising and improving the road-bed and railroad yards. It is alleged that on the night of September 16, 1889, the company unloaded a large quantity of cinders between two of the tracks, and left them heaped up in an insecure condition in the passageway over which the plaintiff was required to go in the performance of his duty as an inspector, and that, while passing over this pile of cinders in the performance of his duty, by reason of the unsafe and insecure footing caused thereby, he lost his balance and fell toward an adjoining track and was struck by a passing engine, breaking his leg and otherwise bruising and injuring his body ; and for the injury sustained he asks damages in the sum of $10,-000. The railroad company insisted that Beaver was guilty of negligence, and therefore responsible for the
It is insisted that it was not within the province of the court to determine the question of contributoi’y negligence as one of law, and that its ruling upon the demurrer was erroneous.
“In case of a demurrer to plaintiff’s evidence, the court cannot weigh conflicting testimony, but must view that which is given in the light most favorable to the plaintiff, and allow all reasonable inferences in his favor ; and, unless all that is offered fails to establish his case or some material fact in issue in the case, the demurrer should be overruled.” (Rogers v. Hodgson, 46 Kan. 276.) See, also, K. C. Ft. S. & G. Rld. Co. v. Foster, 39 Kan. 329 ; K. C. Ft. S. & C. Rld. Co. v. Cravens, 43 id. 650.
If beyond dispute or cavil it appears that the accident was the result of Beaver’s own negligence, then there was nothing for the jury to decide. On the other hand, if the standard of care required of him was a subject upon which different opinions might be entertained, and the facts shown and inferences to be drawn from them were such that reasonable minds might differ with respect to whether he had acted as a reasonably prudent man should have done under the circumstances, the case should have gone to the jury.
The action of the railroad company in leaving long, sloping piles of cinders between tracks where the inspectors were required to pass over them in the performance of their duties may be negligence. But it is insisted that, whether the railroad company was guilty of negligence or not, Beaver cannot recover, because he had knowledge of the location and condition of the cinders, and must necessarily have assumed
Our view is that the case should have been submitted to the jury, and therefore the judgment will be reversed, and the cause remanded for another trial.