97 Kan. 654 | Kan. | 1916
The opinion of the court was delivered by
Two actions were brought against the Missouri, Kansas & Texas Railway Company for damages, one for the death of Louis Degitz, the other for the death of Edward W. Plauserman, both employees of the Union Pacific Railroad Company, who were engaged at the time they were killed in inspecting a car which had been placed upon the transfer track of defendant in Junction City. The jury in each case rendered a verdict for the plaintiff and also made certain special findings. The cases were tried separately, and as both men were inspecting the same car and were killed by the same •movement the issues and the testimony in the cases were substantially similar. The appeals were argued together and they may be disposed of in a single opinion.
Junction City is a terminal point of the Missouri, Kansas & Texas railway, which enters the city from the south, and its main track running north and south connects with the main line of the Union Pacific. East of the north end of the Missouri, Kansas & Texas main track it has a switching yard
The accident in which Hauserman and Degitz were killed occurred about ten o’clock at night on December 3, 1913. A Missouri, Kansas & Texas train consisting of ten cars and caboose had arrived and was pulled upon the transfer track. A number of the cars were to be consigned to the Union Pacific, and that company had been notified during the afternoon that one of these cars in the train contained live stock. Three of the cars were cut off of the train and left up at the north end of the transfer track. The southernmost car of the three was not intended to.be transferred to the Union Pacific, and it appears that the crew of the train undertook to place the third car on one of the sidetracks by running the three cars up to the north lead, but they were unable to get in at that end as there was not room for the engine and three cars to get past
The inspectors, it appears, carried lanterns with reflectors at one side, but apparently their lights were not seen by the trainmen of the defendant. It is evident that the inspectors thought that the cars placed at the north end had been left for inspection, as they began the work of inspection shortly after the cars had been placed there. It appears that during the afternoon a dispatch had been sent by the defendant to Junction City to the effect that probably a car of live stock would be on the defendant’s train destined for Kansas City over the Union Pacific railroad, and this message had been brought to the attention of the Union Pacific agent. The defendant’s train, which was due about six o’clock that evening, did not arrive until after ten, and the Union Pacific train, which was scheduled to leave Junction City at 9:30 p. m., did not, on some account, leave that night until 11:50 p. m. Whether the
There is little dispute between the parties as to the principles of law involved, but it is urged by the defendant that the evidence does not sustain the special findings or the general verdict returned by the juries, and further, that it does establish contributory negligence on the part of the deceased inspectors. There is a contention that under the circumstances the defendant owed no duty to the inspectors except to refrain from wantonly injuring them; that the defendant had not yet finished the switching, and the car that was being inspected had not been finally delivered to the Union Pacific company, and hence the inspectors were not warranted in going upon the transfer track for inspection nor for any other purpose. The inspectors can not be regarded as tresspassers, nor can the duty owed by the defendant to them be measured by the rule of care due to trespassers. While the defendant owned the track on which the car had been placed, that track had been dedicated to the use of both companies for transfer purposes, and the defendant was bound to anticipate that employees of the other company would be on or about the track and was therefore required to exercise reasonable care for their safety. (Linker v. Railroad Co., 82 Kan. 580, 109 Pac. 678; Losey v. Railway Co., 84 Kan. 224, 114 Pac. 198; Aaron v. Telephone Co., 89 Kan. 186, 131 Pac. 582; McMarshall v. The Chicago, R. I. & P. Ry. Co., 80 Iowa, 757, 45 N. W. 1065, 20 Am. St. Rep. 445; C. N. O. & T. P. Ry. Co. v. Winningham’s Admr., 156 Ky. 434, 161 S. W. 506; 33 Cyc. 811; 3 Elliott on Railroads, 2d ed., § 1265.) The cars had been set apart from the other cars of the train on the transfer track in the customary way of placing them for inspection and transfer. The engine had been uncoupled from them and taken to another part of the yard, and the situation so created indicated that the cars so separated had been left for inspection and transfer. It is true that one of the three so set out was a local car not intended for transfer, but the usual segregation had been made and no notice had been given of a purpose to couple on to them or that they were to be moved again. A different situation would have been presented if these cars had been
It is urged that the deceased inspectors failed to take due care for their own safety when they entered upon the task of inspection. There is a finding by the jury exonerating them from this charge. The claim that they were not warranted in beginning work so soon has already been considered. Defendant insists that there was no occasion for them tó go into a. place of danger in making the inspection and that it could have been efficiently done from the sides of the car. A passing glance as a car moves by or a long-range view from the sides would hardly meet the requirements of a careful and proper inspection of a car that was to be transferred to another line. There is testimony to the effect that an inspector must examine drawbars, couplers, air cylinders, sills,', underframes, hose, safety appliances and brake rigging, as well as ladders, doors, hinges and the upper parts of the cars. To inspect some of the parts it was shown to be necessary to go to the ends, as well as to lean over the rail and look underneath the car, and that it takes from two to ten minutes to accomplish an inspection. In
It is said that as Fink heard the engine moving on the east tracks of the yard and later saw the train moving from the south, they too should have observed these movements, and also that they should have seen the lights carried by the trainmen of the defendant as they approached the stock car. These were all proper considerations for the jury in determining whether due care was exercised by the inspectors for their own safety. These, with other testimony, only raise a question of fact for the determination of the jury, and that question has been decided against the contention of the defendant.
It is urged that under the rules the inspectors should have placed blue lights at the side of the car while they were in a place of danger during the making of the inspection. It appears, however, that the rule invoked is not applicable in an ordinary inspection, but is only to be applied when persons go under a car and in places of danger to make repairs. An illustration of the application of the rule may be found in Pullin v. Railway Co., 96 Kan. 165, 150 Pac. 604. In view of the fact that the placing of blue lights was not required in cases of inspection, the criticism made upon an instruction which related to a waiver or abandonment of the rule is immaterial.
Nothing substantial is found in other criticisms of the instructions nor in the objections made to rulings refusing to require more definite answers to special interrogatories. An examination of the evidence satisfies us that under the rule governing a review of findings made by a jury there is testimony sufficient to uphold the special findings and the general verdict in each of the cases, and therefore the judgment in both of the cases must be affirmed.