52 Kan. 637 | Kan. | 1894
The opinion of the court was delivered by
It is insisted that many of the special findings of the jury are unsupported by any evidence and contrary thereto; also, that the damages allowed at $5,000 are so excessive as to indicate passion and prejudice. The jury specially found that.no officer, agent or employé of the railroad company knew of the existence of the defect which caused the jack to break, prior to the time it broke; that there was no evidence to show whether the foot broken from the jack at the time Eyan was injured was the same foot upon the jack when the company purchased it; and that it was customary on railroads generally to leave the inspection of tools used in track work to the section foreman. But they further found that the defect in the jack was visible before it broke, if it had been properly inspected.
A critical examination of all of the evidence in the case, including that offered upon the part of Ryan, fails to show that there was any evidence introduced to support the finding that “the defect or flaw in the jack was visible before it broke, if it had been properly inspected.” Involved with this finding are' also the following findings: “ That the railroad company was guilty of negligence in receiving the jack for use on its road, if it was received in the condition it was when it broke,” and “ that a man of ordinary skill and diligence, by the usual and ordinary inspection of the jack before it broke, would have been likely to have discovered the flaw or defect therein.” It would necessarily follow that if the defect in the jack was visible before it broke, and if it existed from the time it was made, or from the time that the foot was attached or welded, that “the railroad company was guilty of negligence in receiving the jack,” and, also, that “a man of ordinary skill and diligence, by the usual and ordinary inspection or examination of the jack before it broke, would have been likely to have discovered the defect.” It
Ryan, the plaintiff below, testified:
“Q,ues. You had some experience on railroads before you worked on the Kansas City & Pacific? Ans. Yes, sir; I had worked some on the section.
“Q,. And you had worked on the Kansas City & Pacific about three weeks before this happened? A. Somewhere about a month, I guess.
“Q,. You commenced the 1st of April, didn’t you? A. I do n’t know exactly when I did commence.
“ Q,. And this happened on the 22d of April ? A. Yes, sir.
“ Q,. This jack had been in use right along on track work during the time you were working on the railroad ? A. Yes, sir.
“ Q,, Used every day and every hour in the day, almost, in
“Q,. That was what you were principally engaged in doing — surfacing road, and getting the track up in shape? A. Yes, sir.
“Q,. So that it was necessary to use the jack about all the time? A. Yes, sir; the jack was used all the time.
“ Q,. This was the only time it ever broke, to your knowledge? A. Yes, sir; I never saw the jack break before.”
John Tomaine, called as a witness by Ryan, testified:
“Q,. How long had Mr. Ratliff had that jack with his gang? A. I think he had had the jack ever since I commenced to work there for him.
“Q,. That was how long before? A. I commenced to work for him probably in February, about the 1st, 1889.
“Q. Then it was February, March, and April up to the time it was broken? A. Yes, sir.
“Q,, You never noticed any signs of any defect about the jack? A. I never paid any attention to it.
“Q,. I say you never noticed any? A. No, sir.
“ Q. What work were you engaged in most of the time when you were working for them on this section during the month of April? A. We were raising track.
“Q,. And surfacing? A. Yes, sir.
“Q,. This jack was the tool that was in use during that time, was it ? A. It seems to me he had another jack there a while — sent it away along in the spring.
“Q,. Do you know whether this jack was on the work all the time? A. Yes, sir; the jack we had was there all the time until Mr. Ryan got hurt.
“Q,. Do you know whether it was this jack or some other jack? A. I could n’t say whether it was that jack for sure, or not. It was something like that jack; I guess that is the same one; I could n’t say for sure whether that is the one or not.
“Q,. Was there more than one jack there at any time? A. It seems to me like he had two there in the spring, and he sent one of them in.”
J. S. Edwards, called as a witness by Ryan, testified:
“Q. Did you notice this flaw in the metal at the time of the injury to Mr. Ryan? A. I did after the injury was done.
“Q,. How long had the jack been in use there by your
“Q,. And it bad been used ever since? A. There was one jack, it was sent in for repairs; one of these cogs had been broken, and the piece was sent in for repairs, and it came back.
“Q,. What had you been doing that day with it before this accident happened? A. We had been raising track south of the switch.
“Q. Been using it and making a good many lifts with it? A. Yes, sir; we used it right along; we had no other jack.
“Q,. And you had been using it right along ever since you had it there? A. Yes, sir; what time it was there.
■ “Q. Did you ever notice that flaw in it before it broke? A. I never did; no, sir.
“Q. It is mostly on the interior of the metal, isn’t it? A. Yes, sir.
“ Q,. Do you remember how often this jack was sent back for repairs? A. I do n’t.
“ Q,. Do you remember any other repairs it needed at any time? A. No; I do not.
“Q. Did you ever notice any flaw in the jack? A. I did n’t.
“Q. Did you ever make any inspection of it, or see anyone making an inspection? A. No; I never did.”
Ed. Nelson, a section man on the railroad with Ryan, and called by him as a witness, testified:
“Q. Now, you say you have looked at this jack, generally, a good many times before it was broken. Did you ever see any signs of any defect about it ? A. No, sir.
“ Q,. I will ask you if the defect that is there is n’t almost entirely on the interior surface of the metal ? A. I don’t think it could be seen from the outside.
“Q. Before it was torn apart — broken? A. Yes, sir.
“ Q,. That is, you do n’t think it could be seen before it was broken or torn apart? A. No, sir; I don’t think it could.
“Q. You never made any minute examination of the foot piece, to determine whether there was any flaws on it ? A. I never put it on the car, and it was n’t my business to use it, and I seldom handled it at all.”
W. M. Kuykendall, called as a witness by Ryan, testified:
“Q,. How long had you been on the work at that time?
“Q,. Had this jack been there while you were at work? A. I don’t think this same jack had been there; but then, one something like it had been there.
“Q. Had any jack been sent back at any time? A. Yes; if I remember right, the jack that was on the work when I went on the work was broken. These little cogs here were broken out, and Ratliff kept it here and sent for another one, and when this one came he sent that one to Parsons, if I remember right.
“Q. You had been using the jack that day, had you? A. Yes, sir.
“Q. And for a number of weeks previous to that time? A. I don’t know just exactly how long we had been using it, but I used the jack about all it was used.
“Q,. I say, this jack had been in use a number of weeks previous to that time? A. Yes, sir.
“Q,. It was right under your eye when you used it? A. Yes, sir.
“Q. You lifted it up and had it in your hands and handled it? A. I carried it all the time.
Q,. And in handling it, using it, and lifting it up, your eye must have fallen on every part of it at various times? A. I won’t say that it did.
“Q. What part of it do you think you never saw, or that your eye never fell upon? A. I never examined the jack.
“ Q, I will ask you if it possible for a man to use a tool and handle it day after day without seeing it? A. It don’t look hardly like he could.
“Q. Do you think that you handled that tool and used it' there — handled it day after day without seeing it? A. I would n’t say that I saw this part down in here at all every day.
“Q,. What? A. I wouldn’t say that I saw this down here every day..
“ Q,. The parts that are hidden of course you did n’t see; I don’t mean that; but the parts that are in sight you saw every day, did n’t you? A. I guess I did.
“ Q. Of course you did n’t see in back here [indicating] every day, because you did n’t get down to look at it ? A. No, sir.
“ Q,. Did you ever see any signs or suspicions of a flaw in
“Q. Do you know anything about this tool being looked over by anybody else before its being used ? A. Mr. Ratliff always unlocks the tool box, and I suppose he—
“ Q,. I do n’t want any supposition. If you ever saw Mr. Ratliff look them over as if he was inspecting them, you can say so, if you remember. A. I have seen him pick up his tools and look at them.
“Q. Did you ever see him inspect this jack ? A. I have seen him pick it up and look over it.
“Q,. Look over it for what purpose? A. I suppose to see if there was any flaw or any break about it — cracks, or anything of that kind.
“ Q,. When did you see him do that ? A. I do n’t know as I can tell you just when I saw him do it. I saw him look over his tools a number of times.
“ Q,. Was it his custom to do that of mornings when he took his tools out — not every morning, perhaps, but occasionally? A. I think he did.
“ Q. You have seen him do it ? A. I have seen him looking over his tools.
“Q. You have seen him look over that jack' before this accident? A. Yes, sir.”
H. Llenk, called by Ryan as a witness, testified that he was a blacksmith; that he had been engaged in that business for 20 years at St. Louis and Paola, and thatjhe had had experience generally in iron work. Upon his direct examination, he testified, also:
“Q,ues. You may state now whether a weld of that kind could have been discovered by looking at it? Ans. I do n’t suppose it could after it was finished off.
■ “Q,. Would there be anything on the surface that would indicate that that was a bad piece of workmanship — a bad job, as you have designated it? A. I do n’t know. I do n’t think you could by looking at it after it was finished off, probably; the way that has been ground off.
“Q. Could you tell from the appearance of it now as to whether or not it could have been detected by looking at it? A. No; I do n’t think it could have been detected by looking at it. I do n’t think it could.”
“Ques. The defect in this piece here is a defective weld, •isn’t it? Ans. Yes, sir.
“Q. And most of the defect is interior, out of sight? A. Yes, sir.
“Q. By the way, how does that surface there appear to •have been finished? A. With an emery wheel, I suppose.
“Q. Where the surfaces are finished off on the outside with an emery wheel, it would simply make it all bright surface of the metal? A. Yes, sir.
“Q. Without showing anything? A. Yes, sir.
“Q. That is the reason you say to the jury you wouldn’t think this could have been discovered by the eye after it was •once finished off, is it? A. Yes, sir.
“Q. Your judgment is from the appearance of this you could n’t have detected it with your eye — by the way this is finished down and so forth you couldn’t have detected this with your eye? A. No, sir.”
Charles Moran, called as a witness by Ryan, testified that he was a blacksmith; that he learned his trade in 1855; that he had worked at such shops for about 23 years in St. Louis, Armstrong, Kas., and in Kansas City, St. Charles, and St. Louis, Mo.; that he had had experience in the repair of railroad tools, and worked in that business in Armstrong for five years making claw bars, spike mauls, lining bars, and lever bars for raising track, etc. He further testified, in his ■direct examination:
“Ques. Would you have been able to know, by looking at that before it had been broken, whether or not that foot piece had been put on in the way you have stated? Ans. Yes, sir; you could see the scarfs, right here; you can detect that, or a man with a young eye, or with spectacles; you can see that scarf; there is a scarf loose that never was welded; I can see it without spectacles.
“Q. You may just explain to the jury in what ways a reasonable examination would have disclosed that that was defective, or would have disclosed that defect or flaw. A. I myself would have told it by seeing the scarfs on it here. I could have told it that way. It was never solidly welded, but the men that test it would do it with a hammer.”
“Q. Now, I will ask you if it is n’t a fact that where two surfaces are put together — welded together like that— and two-thirds or three-fourths of the weld holds, and the iron is hammered or formed by the application of some force into shape, and then polished — not polished, but finished down with a file or emery wheel — I will ask you if you w;ould always be able to see by your eye a flaw? A. Yes, sir; you see that scarf?
“Q. I see it now, because you can’t get it together tight with your fingers. A. It could be seen anyhow when the iron was red.
“Q,. I know it could be seen when the iron was red; that is, in the hands of the blacksmith. A. Yes, sir; in the hands of the blacksmith.
“ Q. I do n’t want to misunderstand you, Mr. Moran. What I am getting at is, after it has passe.d from the hands of the blacksmith, and after it has been finished down with an emery wheel or a file, whatever it might be, then would n’t that make that all a bright surface of metal without showing any scarf? A. No; that scarf could have always been seen.
“ Q. You think it could have always been seen there? A. Yes, sir; specially after it was either put on the grindstone or rubbed with a file.
“Q. You are not positive about that, are you? A. Well, by the mechanic it could be seen; I do n’t say it could be seen by everybody.
“Q. It could be seen by a skilled worker in iron? A. Yes; I think it could.
“Q,. He could detect that there was a joint there? A. That there was a scarf there.”
On the part- of the railroad company, James Turner testified that he was a blacksmith by trade, and had been so engaged for 28 years, 22 years of which were at Paola, where he lived at the time of the trial; that he had frequently welded bars of iron together, and also bars of iron and steel.
“Q. State to the'jury whether, in your judgment, there would be any way, after that weld was put together and the iron finished down as it appears to have been finished, by which a man could detect the flaw that was in there, by inspection or observation. A. With the eye?
“Q,. How would that be? A. That would be to heat it.
“Q,. Describe to the jury how you might detect it in that way. A. You might heat this little part, for instance, altogether, and then as the heat traveled, if the surfaces was n’t united here, you could see it; this would be dark, whereas there it would be red; consequently the heat would n’t have traveled the same in that as it did in the other.
“ Q. You would have to take it out of the jack and put it in the fire to do that? A. Yes, sir.
“ Q. And would that in your opinion be the ordinary way of inspecting a tool that you had no suspicion of? A. No, sir; it wouldn’t.
“ Q,. Do you think, then, that when this was in the jack in the first place there would be any indication before it was broken or torn apart by which anyone could discover that defect? A. I do n’t think there would be, sir.”
J. T. Fisher, called by the railroad company, testified that he was the roadmaster of the Kansas City & Pacific railroad at the time Ryan was injured.
“Q. Did you see this jack after it was delivered to Mr. Racliff, and before the time that William Ryan was hurt, and, if so, what was its condition? A. It appeared to be perfectly sound and in good order.
“Q. Was this flaw visible, or could it have been discovered by a careful examination of the jack before it was broken? A. It was not visible, and could not have been discovered by any examination of the tool before it was broken.
“ Q,. Why was it not visible? A. In making a weld, the two surfaces of metal are put together hot. If the metal welds over the greater part of the surface, as in this case, the part that is not welded may, by hammering or pressure, be fitted together so perfectly that no eye can see the defect, or distinguish it from those streaks or veins caused by the grain of the metal or by filing or finishing it. Most of the defect in this weld was in the inside of the metal, where it could not be seen, and most of the weld is behind the frame of the jack, so that no one could see much of the sides of the weld, and, for all of these reasons, nothing indicating a defect could be seen there until the surfaces were torn or broken apart, when the defect could at once be seen.”
“ Q. What did you do at any time in the way of inspecting this jack to see if it was sound or not? A. Well, I inspected my tools every morning.
“Q,. What inspection, so far as the jack is concerned, did you give it? A. I always took the jack out of the tool box of a morning and loaded it on the car — examined it; always examined the footpiece of the jack every morning; that was my habit.
“Q. Examine the working parts of the jack? A. Yes, sir; very often.
“Q,. And when you found it was in working order, what would you do? A. State that question again, please.
“Q,. After you examined it, and found it in working order or proper order, then what would you do? A. Well, I put it on the hand car.
“Q,. Was that flaw visible before the metal’was broken and torn apart? ' A. No, sir; not with the eye; you could not see it.
“ Q. Was there any way you know of whereby it could be detected before it was broken and torn apart? A. No, sir; I think not.
“Q,. Just show the jury how you would inspect this jack when you went to take out the tools. A. [Witness shows-jury] By working the jack, and picking it up and looking at it.
“ Q,. Hold it in your hands this way and look at it ? A.. Yes, sir.
“Q. State whether you could, by that examination, tell whether the jack was in good order or not. A. Well, I would think that if there was any flaw in it, I would see it.
“Q. If there was any flaw in it that was visible? A.. Yes, sir.
“Q,. And that, you say, you did every morning? A. Yes,, sir.
“ Q. Did you do it the morning before this accident happened? A. Yes, sir.” '
P. Rockwell, called by the railroad company, testified that he .was the general roadmaster of the M. K. & T. railway;; that he had been engaged continuously in the road department of railroad work for about 30 years; that the road de
“ Q,ues. I will call your attention to this fracture here where the foot or shoe of the bar is broken off, and ask you to state if, in your judgment, that fracture could have been discovered before it was broken or torn apart, by any usual or ordinary inspection of this tool? Ans. No, sir; I should say not; I- dofft see how anybody could have detected the defect that actually existed inside that iron previous to its use; that shows as though it had been in use quite a long time, I don’t know how long, because that is all done by continued raising up against the bottom rail, and must have continued in use for some length of time; I don’t think any ordinary inspection could possibly have discovered that, because it was entirely covered up and on the inside; I don’t see that anyone could have peered into that and discovered the defect in it; I don’t think it is possible; it couldn’t have-been done with the eye, as I could see.
“ Q. Now, a portion of the flaw there you-see seems to come to the surface. Where a portion of iron or metal is welded together as this seems to have been, over, perhaps, two-thirds of the surface — where a portion of it is welded together, and the rest of it is entirely closed up and then finished off with an emery wheel, would it be possible to detect the flaw in there?' A. That is the reason I say it could n’t be detected, because the defects in there were entirely covered over before that fracture was made. The whole thing seemed to be one perfect piece, but at the same time there was a defect in it inside,, and you see those edges down there are a feather edge and would have covered everything up. That is the same kind of defect that occurs in a thousand and one pieces of machinery where iron or steel is used for the make-up of the same.”
The only witness, of all those referred to, who in any way intimated that the defect in the jack was visible before it broke is Moran. He admits that such defect could not have been seen by everybody, but stated that it could have-been seen by a mechanic or by a skilled worker in iron. The jury specially found that it was not usual or customary for railroad companies to employ expert workers in iron or steel' to inspect the tools in use on the road, and therefore, from-
Moran, contrary to all of the other witnesses of both the plaintiff and the defendant inquired of upon the subject, testified that the defect in the jack could have been discovered before it broke, “ by sounding it with a hammer.” He also stated, that at railroad and other shops, where such tools are kept and repaired, “A man who is used to it takes a hammer and goes round, and, by tapping such a tool, can tell whether it is solid or not.” This evidence was not followed up by showing, or offering to show, that with railroad companies, bridge builders, house raisers, or other employers,
If the findings of fact were not contrary to the evidence, and if a finding had been made by the jury that the jack before it broke had been sent in for repairs to the railroad shops of the company at Parsons, on account of worn or broken cogs, or for any other reason, and that proper inspection had not been made in the shops before it was sent out again for use, such a finding would have permitted a recovery. But the case was not tried upon that theory. No instructions were given by the'court or any questions submitted to the jury concerning a proper inspection of this jack at the railroad shops at Parsons, if sent in for repairs. Again, the evidence was conflicting whether the jack was sent in for repairs at all. See Railway Co. v. Dwyer, 36 Kas. 58, where the car to which the brake staff was attached had been repaired with a new body and new trucks', but the old brake staff, which subsequently broke, was permitted to remain. The further fact, however, appeared in that ca3e that the defect in the brake staff was visible before it broke, if any examination had been made underneath the ratchet wheel. Th ere are other findings of the jury not referred to which deserve criticism, but the findings discussed are the most important, and therefore it is not necessary at this time to comment upon the others.
In Railroad Co. v. Jones, 30 Kas. 601, there was a collision between hand cars violent enough to shatter the lifting handles of the car complained of. There was a crack in one of its wheels, and the wheels also wabbled. After the collision, there was no sufficient examination or inspection of the injured car. This court properly held:
“That the patent injury from the collision was so great
In addition to the other matters discussed, the verdict of the jury, in our opinion, is large, as it is admitted that the' doctor’s and dentist’s bills of Eyan on account of his injuries were all paid by the railroad co mpany, and as it was shown that he went to work again as a section hand on another railroad about three months after he was injured, and was working at the time of the trial as section foreman, with increased pay.