77 P. 576 | Kan. | 1904
The opinion of the court was delivered by
On the night of December 27,1900, W. E. Johnson, an employee of the Missouri Pacific Railway Company, was killed in the switch-yards at Ccffeyville, Kan., while in the discharge of his duties as engineer of a switch-engine. He left a widow and one child, and the widow brought this action to recover damages, charging that his death was the result of negligence of the railway company. She had verdict and judgment for the sum of $7000, and the company brings error.
In the city of Coffeyville are two switch-yards, one known as the Missouri Pacific yards, the other as' the
The second amended petition contained two causes of action—the first charging a liability for negligence under the common law, and the second, under the statute. When plaintiff rested her case, defendant interposed a demurrer to the evidence in support of each of the causes of action, and also moved that plaintiff be required to elect upon which cause of action she would rely for a recovery. The court overruled the demurrers, and withdrew from the consideration of the jury all charges of negligence except-the one charging negligence to McElrath on account of his failure to prevent the cut of twelve cars from rolling back down the grade, colliding with the standing cars, and causing the death of Johnson.
Defendant denied negligence on the part of McElrath, and charged negligence to Johnson contributing;' to, and causing, his death. It was averred by it that-, the accident was caused by Johnson’s negligence in the following particulars: (1) In not obeying-the; signals given him to stop and back; (2) in stopping the engine with fifteen cars on the grade, he at the time knowing the danger of the cut-off cars’ running, back against them ; (3) in going under the engine at¡ the time and under the circumstances then existing' without giving notice or warning that he was about, to do so ; (4) in voluntarily and unnecessarily select-' ing a dangerous and unsafe way to do what he did,' when there was a better and safer way which might,
The switching crew with Johnson was composed of Wilson, the foreman of the crew, whose duty it was to lay out and direct the work; Murphy, one of the helpers, whose duty it was to cut off cars and throw switches ; McElrath, also one of the helpers, the field-man, whose duty it was to look out after, catch and stop cuts.of cars; and Zubar, the fireman. Wilson and Murphy testified that signals to stop and to back were given to Johnson by means of a lantern at or about the time the twelve cars wero cut off; that the signals were not answered or acted upon by him. There was no evidence to show that he saw or understood the signals given. There was testimony tending to show that Johnson, from his position on the engine, could not have seen the signals ; and there was testimony tending to show that the signals, given were confusing ; that it was the duty of an engineer, upon receiving confusing signals, not to' act on the the same, but await the giving of signals which he could understand. There was also competent evidence to the effect that when an engineer believed, as Johnson at the time expressed himself to his fireman, Zubar, as believing, that there was a hot box on his engine, it was his duty, at once and to the exclusion
Whether Johnson, before making an examination of his engine, applied the brakes, or whether he attempted to communicate by signals to the switchmen the fact that he was about to .make such examination of his engine, is in doubt. He did not sound the whistle. If he signaled by the use of his torch it was not seen. When the collision came the fireman found the brakes not applied. He applied them and soon stopped the moving engine and cars. He stated that he did not know whether Johnson had applied the brakes before leaving the engine. There was evidence offered to show that the air-brakes, such as those with which this engine was equipped, would, when the air had been applied, automatically release themselves within the time intervening between Johnson’s leaving his engine and the collision caused by the cars’ rolling down the grade. There was evidence that one man could handle and control that number of cars on the grade of the Y, if attentive to the task, and the work of setting the brakes was taken in hand at the proper time ; that one brake in good repair, set at the proper time, would have held this cut of cars.
Johnson was a new man in the yards and, while it is fair to presume he knew of the existence of the grade, there was no evidence to show that he had any knowledge that cars frequently rolled back down the grade when attended by a brakeman to control them. He had the right, under the circumstances, to assume that McElrath would discharge his duty, control the cars, and prevent their rolling back down the grade.
•Switchman McElrath, a witness for defendant, stated that when the cut of twelve cars was made, he followed them up the grade, overtook them, climbed on top of the cars, set the brakes on two of them, and was in the act of setting the brake on a third when they collided with the standing cars attached to the engine. He further stated that he had about succeeded in stopping the moving cars ; that had Johnson stopped the cars attached to the engine at the time he was signaled to do so and not permitted them to move further up the grade, he (McElrath) could have stopped the twelve cars’ rolling down the grade before they would have traveled to a point where the standing cars would then have been, and the collision with the standing cars thus have been avoided. Wilson and Murphy both stated that when they last saw McElrath before the collision he was following the
Defendant also produced as witnesses its master mechanic and several engineers'to establish that Johnson, in making the examination of his engine, had not pursued the safest course and had voluntarily placed himself in a place of great danger. The question of the negligence of McElrath in not preventing the cars’ rolling down the grade, and the question of the negligence of Johnson in making the examination of his engine at the time and place and under the surrounding circumstances, were submitted to the jury upon conflicting evidence. The jury returned answers to 115 special questions submitted by defendant, covering all the material points in controversy. The answers returned were consistent with one another, were supported by the evidence, and upheld the general verdict. The jury specially found that there was negligence on the part of McElrath and that there was no negligence on the part of Johnson. They not only found negligence on the part of McElrath in not preventing the cars’ rolling down the grade, but also found that he was never on the cut of twelve cars to set the brakes.
The record in this case is voluminous. Much testimony was introduced upon the trial going to the questions of the negligence of McElrath and the contributory negligence of Johnson. The brief of plaintiff in error contains numerous assignments of error, most of which are based upon the refusal of the court to give the instructions requested and upon the instructions given. The latter fairly stated the law of the case, and there was no material error in refusing to give the instructions requested.
No prejudicial error being found in the record, the judgment of the district court will be affirmed.