McDermott v. Atchison, Topeka & Santa Fe Railroad, 56 Kan. 319

McDermott v. Atchison, Topeka & Santa Fe Railroad

56 Kan. 319 | Kan. | 1896

The opinion of the court was delivered by

Allen, J. :

The only negligence relied on by the plaintiff for a recovery is that of the engineer in running at an unusual, unnecessary and dangerous,rate of speed. It is not claimed that the conductor was negligent in attempting to make a flying switch at a place where it was necessary to cross another rail*323road. Much stress is put on the fact of McDermott’s inexperience and want of knowledge of the dangers attending the performance of the particular duty-devolving on him in making a flying switch, and on the fact that the officer who employed him knew his want of experience. It certainly cannot be held that the company is guilty of greater negligence in employing an inexperienced hrakeman than he is in soliciting and accepting such employment. Experience in any line of business cannot possibly be gained in any other way than through actual employment in it. By entering the employment of the company as a hrakeman, McDermott held himself out as competent to perform his duties as such. Although the jury have found the rate of speed at which the engine and car were driven was greater than was necessary, and that this caused his death, they also find the rate to have been 12 to 15 miles per hour. While this rate does not impress us as remarkably high or indicative of carelessness on the part of the engineer, we cannot declare, as a matter of law, that it conflicts with the finding that it was unusual and unnecessary. The serious obstacle in the way of sustaining the general verdict is the twenty-eighth finding, from which it appears that the movements of the engineer were under McDermott’s own control. This being so, it is exceedingly difficult to understand how he can be exonerated from negligence while charging it on the engineer. If the engineer was bound to follow his directions, and did follow them, as the findings seem to indicate, the unnecessary speed was chargeable to McDermott rather than the engineer, and his widow claiming through him cannot recover on the ground of negligence on the part of the engineer. This view seems controlling to my brethren, *324and while the writer entertains great doubt whether the twenty-eighth finding ought to be construed as meaning more than that it was the duty of McDermott to signal the engineer to slack up at the proper time for him to pull the pin and pull ahead after it was pulled, and of the engineer to obey these signals, he yet .is not clear that its meaning is misapprehended by the other members of the court.

The judgment is therefore affirmed.

All the Justices concurring.