57 Kan. 548 | Kan. | 1896
On April 5, 1890, Henry J. Croll, an employe of the Atchison, Topeka & Santa Pe Railroad Company was engaged in ditching along the railroad about 10 or 12 feet distant from the track. Tlie track was well ballasted and generally in good condition, but on account of recent rains and the frost coming out of the ground it had become somewhat soft and uneven. While a passenger train was passing the place where Croll was at work a lump of coal weighing between 12 and 15 pounds rolled from the top of the tender to the ground, and, bounding from there, struck Croll on the head, seriously injuring his eye and face. He brought this action charging that the Company was negligent in overloading the tender and in failing to keep its track in proper condition. At the trial there was testimony that the tender was very heavily loaded; that in the center of the tender the coal was
A demurrer to the evidence was interposed and overruled ; but upon review the Court of Appeals held that there was no evidence tending to prove that the coal was negligently loaded, and ordered a reversal, with instructions to sustain the demurrer to the evidence. 3 Kan. App. 242; 45 Pac. Rep. 112.
We are unable to concur in this view. There is little if any testimony of negligence as to- the maintenance of the track, but we think there was evidence tending to show negligence in overloading the tender, and at least sufficient to take the case to the jury. It may be proper to carry a rounding load of coal, but certainly it is neither necessary nor safe to have it piled upon the flange or above the edge of the tender. It was contended that the testimony did not show that the coal was above the edge of the tender; but that given by Mayer will hardly bear that interpretation :
“ Ques. State about what height the coal was piled up at the edge of the tender, if at all. Ans. I should judge between two and three feet.
“ Q. You mean in the center? A. Yes, sir.
“Q,. About how high was it at the outer edge of the tender, where it came to the edge of the flange? A. It was above the edge of the flange ; I cannot say how far.”
On this testimony the jury found that the coal was loaded over the flange of the tender. If it was loaded on the flange or above the edge of the tender, the top
We are not impressed with the suggestion that Croll assumed the risks and dangers incident to the overloaded tender. It is true that he knew something of the condition of the track and roadbed and was aware that the roughness of the track gave the engine a swinging motion, but there is nothing to show that he had reason to apprehend that the coal would be piled above the edge of the tender, or that pieces of the same would be thrown so as to strike him when he was 10 or 12 feet away. He was at work in the place to which he was assigned, and we fail to see that
The testimony in the record does not indicate passion or prejudice on the part of the jury, and no good reason is seen why the verdict, which appears to have support in the testimony, should be set aside.
The rulings complained of upon the testimony and the instructions are not deemed to be erroneous nor such as require special comment.
The judgment of the Court of Appeals will be reversed, and the judgment of the District Court will be affirmed.