41 Kan. 715 | Kan. | 1889
Opinion- by
This action was brought in the district court of Wyandotte county, to recover for the death of J. M. Hite, who was run over and killed by a train of cars on the Inter-State Consolidated Rapid Transit Railway Company’s road, on the 21st day of October, 1886. At the time of the accident, Hite was employed as a carpenter in the construction of what is known as the Splitlog trestle, and had been so at work for about five months. He was working immediately under E. T. Allen, a contractor under the Inter-State Construction Company, who had contracted to build the i’oad, including this trestle. The plaintiff in error insists that the judgment must be reversed, first, for the reason that the record shows that the defendant was guilty of no negligence causing the death of Hite; and second, because the record shows that the deceased was guilty of negligence which contributed directly to his death. As these are questions of fact, and as they
First, as to the negligence of the defendant, plaintiff in error. The jury, as we said above, found such negligence; and in the evidence we find in support of that finding this state of facts: That Hite, the deceased, went to work on the morning of October 21, at 7 o’clock, and was run over and killed by a train of cars on the defendant’s road about half-past 7 in the morning. The morning was very foggy, so much so as to prevent the seeing of a person or object except but for & short distance. The work that Hite was engaged in at the time of his injury was the putting down of a guard-rail on this trestle. The trestle was about 750 feet long and about 20 feet wide, on which were constructed two tracks, one for the north- and the other for the south-bound trains. Cars had been running over the trestle at the time of the injury for some three or four weeks. On the morning of his death, Hite was working on the north-bound track. A train was approaching on that track, ringing the bell and running slowly, and to get out of the way of the train he stepped over upon the south-bound track, and was struck and run over by a train going south, which train was running at a rapid rate of speed, and gave no signal to warn the men at work of its approach. In addition to this, Allen, the contractor, testified that the company was hurrying him up to complete the trestle, and he was asked, “ What information, if any, had you given the company that the men were to go to work on the trestle?” Allen, in answer, said: “They knew it, and they had urged me to finish the work as soon as possible. In speaking of the company, I mean Mr. Edgerton and Mr. Hager. Mr. Hager was superintendent of transportation; Mr. Edgerton is presi
“Q,. What information did Edgerton or Hager have that these men were at work on the trestle at the time of the accident? A. I don’t know that they had any information of it at the exact time, but they knew that the work was progressing, for they were riding over the road several times each day. The work being done was putting on guard-rails.
“Q,. What conversation, if any, did you have with Hager and Edgerton as to the danger of the men at work on the trestle while the trains were running, and what direction did you request him to give to the engineers of the trains, if any? A. I requested Mr. Hager to direct the engineers to run slowly over the trestle-work, and if necessary, to stop to allow my men to get out of the way. This he promised to do.
“ Q,. Was this all the conversation you had about it? A.' We had other conversations, but not as to what was to be done in the future, at which time I told him it was extremely dangerous for the men to work on the trestle while the trains were running. I had previously had a conversation with him in which I asked him to have the trains stopped entirely while the trestle was being completed; to have their temporary terminus at the north of Splitlog trestle instead of River View station. His answer was that we might as well stop running over the entire road.”
It is insisted, however, that this conversation with Edger-ton and Hager, and their promise in relation to running the trains, was no protection to Hite, for the reason that he was not informed of the promise, and that it was not by reason of the promise that he went to work upon the trestle. This the jury found to be true, but will this excuse the company for the reckless and careless manner in which it was operating the trains at the time of the injury? The place where Hite was at work was eminently dangerous, because of the fact that trains were being operated over the road and likely to pass and repass where he was at work. This made the danger. The evidence also shows that the work was almost
Again, there was additional danger on that morning, by reason of the dense fog that prevailed; and it is now urged that by reason of this fog and the dangers caused by it, Hite’s death was caused by going to work in a dangerous place on a foggy morning without any promise that the railroad company would exercise care to protect him from injury. And while, as we said before, it is true that he had no knowledge of the promise of protection, yet can this promise be entirely ignored? We think not. This conversation was had and the promise made on the Saturday preceding the injury, which occurred on Thursday. At the time of this conversation the work had been going on in the night-time so as to avoid the danger. Allen was being urged by the company to finish his work, and to comply with its demands he had this conversation to request protection for his men. After this conversation he did not place the men at work in the daytime on the trestle, until Wednesday afternoon, at which time a gang of men went to work on the trestle, and continued working there during the afternoon, and on Thursday morning again commenced work there. On Thursday morning there were about fourteen men working on the trestle. The evidence also shows that trains had been running over the trestle every fifteen minutes for about an hour and a half that morning. This is all the evidence showing that the company had knowledge that the men were there at work. Is this sufficient ? There is, first, the conversation on Saturday with Allen, in which he informed the company in substance that" he was going to put the men at work on the trestle; second, the statement of Allen that Edgerton and Hager knew the men were there at work, for they were passing over the road several times each day. It must be remembered that Mr. Edgerton was president of the company and superintendent of the construction. Now, holding this position, and passing over the road several times each day, urging Allen at the time to complete the work, the work being done under his supervision, can it be said that he did not know
The next objection is, that the court modified the fifth instruction, which instruction is as follows:
“ 5. When an employé of a railway company enters upon its service with knowledge of the character and position o*f structures, and the manner of running trains over such structures, he assumes all apparent risks, and cannot maintain an action for injuries resulting from such apparent risk; and as applied to this case, if the deceased knew the trestle and the manner of running trains over the same, and passing of the same thereon, and that a dense fog was prevailing, and continued to work on the track or tracks of the railroad on the trestle, then he assumed the risk of such service; and if he was injured in consequence of the trains running over the trestle and passing each other thereon, at or near where he was at work, and from not being able to see both trains, owing to the fog, in time to get out of the way of both, then plaintiff cannot recover, and the verdict should be for the defendant.”
To the foregoing the court on its motion added the following:
“Unless you find from all the circumstances proven on the trial that the railway company was negligent in running its trains at the time, and by such negligence caused the death of said J. M. Hite, and further find that the acts of Hite were not negligent directly contributing to his death.”
We see no error in this modification, for if the company was running its trains on the morning of the injury, knowing that the men were at work, and also knowing the condition of the weather, and with this knowledge ran its trains at a rapid rate of speed, without signals, and under these circumstances Hite was run over and killed, without negligently do
The seventh instruction is also complained of because the court modified it substantially with that of the fifth, omitting only to call the attention of the jury to the fact that Hite must also be free from negligence; but as the court in its modification of the fifth instruction properly gave the law once, the modification of the seventh instruction was not material error.
The last objection raised is, that the court refused to give the fifteenth instruction, as asked by the defendant, which is as follows:
“15. If the jury believe from the evidence that those in charge of the south-bound train which ran over Hite, owing to the fog that was prevailing had no sufficient reason to suppose that Hite or others were at work on the trestle, then the jury cannot find that those in charge of the train were negligent in running the train even a rapid rate of speed exceeding the ordinary rate.”
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.