86 Kan. 112 | Kan. | 1911
The opinion of the court was delivered by
F. E. Duncan was an employee on defendant’s road, was twenty-eight years of age, and earning $4 a day. On the night of March 9, 1908, he was head brakeman on a freight train coming east through the station of Noel, Okla., where on the south side of the track are an elevator and switch, and on the north side a switch stand, and about seventy-eight feet east
Testimony of various men who had worked for defendant showed that the printed rule requiring brakemen to be on top of a train when approaching a station was commonly unheeded and violated. Testimony of .former employees was given to the effect that in their opinion the bridge in its condition was not a safe place to work. Testimony was also introduced showing that for the purpose of giving signals the south side of the engine was the proper one from which to alight. Defendant appeals and assigns as error the refusal of the trial court to sustain a demurrer to the evidence, its refusal to enter judgment on the findings, its denial of a .motion for a new trial, and error in instructions and in ruling upon the introduction of evidence.
It is argued that there was a failure to show what •actually caused the death of Duncan and that the conclusion that it was caused in the way found by the jury arises from mere speculation. Also, that Duncan was" bound by the rule requiring him t.o be on top of the brain, and that instead of being there he had voluntarily •assumed a place of danger and thereby relieved the •defendant of responsibility; that the opinion of the railroad men as to the safety of the bridge was improperly received, not being within the rule permitting expert •evidence, and that the testimony showing the violation ■of the rule regarding the location of brakemen was improperly received and erroneously found by the jury to show a waiver by the company. Also, that there was ■no evidence that the step or stirrup was defective or fhat Duncan was in the line of his duty when the accident occurred.
It is argued that the court erred in chaining that
“Ordinarily, the willful disobedience of a rule should be held to constitute negligence; but where the rule is habitually disregarded, and a different course has long been pursued by employees with the knowledge and approval of the managing officers of the company, the rule must be regarded as inoperative.” (p. 505.)
It was held by the court of appeals of the seventh circuit, in Cleveland, C., C. & St. L. Ry. Co. v. Baker, 91 Fed. 224, 33 C. C. A. 468, that the habitual disregard of such rule with the knowledge of those whose duty it is to report violations thereof presents a question for the jury whether the rule has been waived by the company. This' is substantially the same as the rule announced in the Springsteen case, supra, where an instruction quite similar to the one given in the case now under consideration was approved. Plaintiff asserts that as the defendant did not plead this rule it had no right to introduce evidence thereof. But as the answer appeared to be a general allegation of contributory negligence and assumption of risk, the plaintiff could have required the specific facts to be set forth by mo
The defendant complains that evidence was received of the opinion of witnesses that the bridge was a dangerous place to work. These questions propounded to employees of the defendant, who were familiar with the bridge in question, called for their opinions as to whether it was a safe structure to couple and uncouple cars and to switch trains on the side track, or a safe structure for the brakeman and conductor to use in coupling and uncoupling and switching trains from that station from the east end of the switch. This was objected to as calling for an opinion of a witness who had not shown himself competent, and that it was a matter on which opinion evidence was not competent, the safety of the bridge being a question for the jury.
The alleged negligence of the company respecting the bridge was the failure to equip it with a runway on the south side, no mention being made of a hand rail on that side, and the testimony very clearly showed that the cab of engine No. 134 must have projected over the south end of the bridge and that there was neither runway nor hand rail on that side, and a photograph was introduced giving a very clear picture of the structure. In view of this condition of things the jury were as well able to say as anyone else whether the bridge was a safe place for train operatives to work, it being remembered that there was no complaint concerning such bridge except as to its south side. In Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554, it was held proper to refuse to permit witnesses experienced in the building of bridges like the one there in question to describe its method of construction and claimed defects, and to give their opinion as to its safety. It was there said:
“Where all the facts from which an opinion can be formed as to the safety of travel on a public highway*119 are stated by those who have knowledge of them, and the matter is one within the comprehension of the jury upon explanation of such facts, it is the province of the jury to form such opinion, and not of witnesses, although experts, to express theirs.” (p. 3.)
In Erb v. Popritz, 59 Kan. 264, 52 Pac. 871, certain witnesses without railroad experience had been permitted to give their opinion as to the cause of a certain derailment, and this was held error on the ground, not only that the witnesses had no expert knowledge,' but that the appearance of the wreck could have been easily and adequately described to the jurors so that they could have formed an opinion as readily as the witnesses. Had the structure and situation been such that the witnesses by their railroad experience were able to afford the jury any assistance in addition to that furnished by an explanation of the facts and the photograph of the bridge it would have been proper to receive their opinions. (Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819; Railroad Co. v. Blaker, 68 Kan. 244, 75 Pac. 71; United States Smelting Co. v. Parry, 166 Fed. 407, 92 C. C. A. 159; Central Coal & Coke Co. v. Williams, 173 Fed. 337, 97 C. C. A. 597; Gila Valley R. R. Co. v. Lyon, 203 U. S. 465.) It is impossible to see, however, why the jury were not entirely competent to judge as to the safety of the bridge or how they could in any wise have been assisted by the opinions of others. In addition to this, the questions were too broad, and if proper at all should have been restricted-to the duties of a brakeman in giving signals and should not have included the duties of others in switching and uncoupling. It is suggested that the error, if any, was harmless, as the jury would have reached the same conclusion regardless of the opinions of others. But the matter presented by these opinions was not that the absence of a runway on the south side of the bridge made it dangerous for Duncan to assist in switching by giving signals, but was the broad proposition
Complaint is also made that railroad men were permitted to testify as to which side the brakeman should get off in order to operate the train and give and receive proper signals. We see no reason why this was not competent, however, for jurors are not supposed to understand the proper method of operating railroad' trains. (Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819.)
Instruction No. 15 charged that the law did not require that Duncan should know of defects, if any existed, in the tracks, switches or engines, nor require him to make an inspection to ascertain if any such existed. In the same instruction the jury were told that if any such defects existed and were known to him it was his duty to exercise ordinary care to avoid injury and danger caused thereby, and this is criticised.
It was improper to include within this instruction tracks and switches, as the engine and bridge were the only alleged negligent matters about which evidence had been introduced; however, it is not seen that this expression could have in any wise prejudiced the jury- or harmed the defendant.
The railway company insists that it devolved upon the plaintiff to show that the absence of a standard step on the south side of the engine or the absence of a platform on the south side of the bridge was the proximate cause of Duncan’s death; that there was an utter failure of proof in this respect because the evidence did not show whether he attempted to use either step or platform, and even if it had so shown there was. nothing to indicate that he looked before he leaped, and therefore the company could not be held responsible. Also that the evidence failed to show that Duncan had
“The step, however, was not really defective, but was simply of a different pattern from those often used on railroad engines;, and the plaintiff admits in his brief that the evidence does not show such a defective or unsafe condition of the step as to preclude its use. And he also admits that, except for the reversal of the engine he would not have fallen or been injured. Besides, there was no necessity for the plaintiff to use the step at the time he did; and we certainly think that no negligence can be imputed to the railroad company on account of the use of said step by the plaintiff at the time he used it. Probably neither the plaintiff nor the*123 railroad company was guilty of negligence in using said step.” (p. 763.)
While the jury were warranted in drawing fair and reasonable inference from the facts and conditions shown, it was only from those shown and not from those imagined or inferred that such inference could rightfully be drawn. They found that the negligence which caused the death was “defective step on engine No. 134 and lack of runway and hand rail on south side of bridge,” and, also, that the train was moving about six miles an hour, and that Duncan would have been injured if he had waited until the train stopped before getting off. Had he thus waited he would have been well beyond the bridge, which was 56 feet in length, and hence an injury at the point then reached could not have been caused by a defect in the .bridge. A mere accidental falling from the engine without fault of the company would not render it liable, and therefore in order to make the bridge a contributing cause of the injury it must appear otherwise than by speculation that the fall itself was attributable to the negligence of the company. It is largely a case of circumstantial evidence in which the circumstances shown must be of such significance and relation one to another that a reasonable conclusion of negligence can be founded thereon. In Railway Co. v. Rhoades, 64 Kan. 553, 68 Pac. 58, it was held that to establish a theory by circumstantial evidence the known facts relied on must be of such nature and so related to one another that the only reasonable conclusion to be drawn therefrom is the theory sought to be established. In Hart v. Railroad Co., 80 Kan. 699, 102 Pac. 1101, it was shown that a passenger fell from a vestibule train; the door of one vestibule was open but there was no testimony to show where or how it was opened', and it was argued that the presumption of negligence on the part of the company •or of suicide on the part.of the defendant were the
“The circumstances do not, however, indicate how the person happened to fall under the train or whose fault occasioned the fall, if it be the fault of anyone.”' (p. 705.)
In Duncan v. Railway Co., 82 Kan. 230, 108 Pac. 101, a brakeman named Duncan was standing upon the stirrup of a freight car raising the lever which would uncouple the next car. The uncoupling had been made and the train had parted and Duncan was seen to roll out from under a car in the rear from the opposite side of' the train. Blood was found upon the ties outside of the rail from the opposite side of the track where he had last been seen, and also upon one of the cars. The engineer testified that he saw him upon the stirrup, that he was leaning over into the car and giving signals to-go forward. The brake beam of the car was found to-be defective and in stepping upon it, for some reason not shown, it would sink down. The plaintiff claimed that the lever of the coupling device was disconnected and failed to work and for that reason the deceased! had to lean over between the cars to lift the coupling-pin, and in so doing his foot slipped on the defective brake beam which caused him to fall. The jury found that the ladder, hand hold and stirrup were in good
_ “It is first presumed that the brakeman was doing his duties properly, which is a fair presumption; it is next presumed that he could not lift the pin by use of the lever; it is presumed from this that the appliance was out of order, and because of this defect it is presumed that he stepped upon the defective brake beam, thereby losing his life. . . . The lamentable death of this man may have been caused by some mischance after the uncoupling was effected. It may have been caused in the manner claimed by the plaintiff. Possibly one conjecture is as reasonable as another, but the evidence does not reveal the cause of his fall. In the absence of such evidence there can be no recovery.” (pp. 232, 238.)
In view of the doctrine announced by these decisions we find it impossible to hold that the evidence justified the jury in all of their conclusions.
The judgment is reversed and the cause remanded with directions to grant a new trial.