41 Kan. 639 | Kan. | 1889
Opinion by
This was an action commenced by E. M. McCally, administrator of the estate of Dexter E. McCally, deceased, against the Missouri Pacific Railway Company, in the district court of Franklin county, to recover damages for wrongfully causing the death of the said Dexter F. McCally, deceased, under § 422, chapter 80, Compiled Laws 1885. The petition of the plaintiff in error alleged in substance, that prior to the 12th day of December, 1885, D. F. McCally was a brakeman in the employment of the defendant, and as such his duty was to assist in running its trains on its line of railway between the towns of Holden, in Missouri, and Leroy, in Kansas; that at, and for a long time prior to, that date, one IPenry Snyder, being an employé of the defendant, and being an ostler at its station in Leroy, having the charge and management of its locomotive engines while at that station, and it being his duty in part to act as engineer of its engines when they were being used at that station in switching and shifting cars to and from its side and main tracks and switches, was incompetent to perform that duty, as the defendant well knew, or by the use of ordinary diligence could have known; that on said 12th day of December, 1885, said Henry Snyder was in charge of one of defendant’s locomotive engines at its station at Leroy, and was engaged in switching cars, in which duty he was assisted by the said Dexter F. McCally and one J. P. Calloway, who was then in the employment of the defendant as brakeman; that the locomotive had been attached to a box car on a side-track by said Dexter F. McCally by a coupling; that immediately upon the coupling of said box car and engine the said Snyder started the engine, pushing said
Two motions were directed against this petition by the plaintiff in error. One of them was to make the petition more definite and certain, by showing in what manner the plaintiff had been damaged by the death of the intestate; and this was sustained. The other was to strike out all that part of the petition that stated the action of Calloway, and the result of the collision on Calloway, as redundant and irrelevant matter; and this was overruled, and the order overruling it is one of the assignments of error. The petition being amended in response to the first motion, the plaintiff in error then demurred to it, on the ground that it did not state facts sufficient to constitute a cause of action against the railway company. The demurrer was overruled, and this is another assignment of error. The plaintiff below then amended his petition in certain respects, and the defendant answered, denying the allegations of the petition generally; and second, alleging that the death of McCally was the result of his own negligence and carelessness; and third, that said McCally died intestate, in the state of Missouri, and left no estate to be administered upon in Franklin county, Kansas; that the probate court of Franklin county, Kansas, had no power to appoint an administrator, or jurisdiction to grant letters of administration on said estate; that all its acts respecting it are void, and that
“1. Do you find that Henry Snyder was a competent and fit engineer to manage the engine, at the time Dexter F. Mc-Cally was injured? A. Yes.
“ 2. Do you find at the time Dexter F. McCally was injured he was riding on the pilot of the engine? A. No,
“3. Was there any place prepared on the pilot of the engine for brakemen to ride, when braking or coupling cars in the yard ? A. No.
“4. Do you find that Henry Snyder, the engineer, was negligent in the management of his engine at the time Dexter F. McCally was injured? A. Yes.
“ 5. Do you find that Henry Snyder, the engineer, mismanaged his engine at the time Dexter F. McCally was injured? A. Yes.
“6. If you find that Henry Snyder, the engineer, was negligent in the management of his engine at the time Dexter F. McCally was injured, in what did such negligence consist ? (Objected to by plaintiff, and not answered.)
“7. If you find that Henry Snyder, the engineer, mismanaged his engine at the time Dexter F. McCally was injured, in what did such mismanagement consist ? (Objected to by plaintiff, and not answered.)
“8. Was the engine on which Dexter F. McCally was riding, in forward movement, or was it moving backward at the time it collided with the coal cars? A. Forward.
“9. Do you find that Henry Snyder reversed his engine when it was one hundred feet distant from the coal cars? A. Yes.
“ 10. Do you find that Dexter F. McCally coupled the engine to the box car, and then voluntarily got upon the pilot in’ front of the engine to ride to the place where it was to be coupled to the loaded coal cars on the track? A. To the first question, yes. To the second question, no.
“11. Did Henry Snyder, the engineer, know that Dexter F. McCally was riding on the pilot at the time he was run*644 ning the engine over the track from where it was coupled to the box car to the loaded coal cars? A. We don’t know.
“12. Do you find that there was room in the cab of the engine with the fireman and engineer, for Dexter F. McCally to ride from where he coupled the engine and box car together to where the coal cars were on the track? A. Yes.
“13. Did any employé of the defendant company order or direct Dexter F. McCally to get on the pilot in front of the ■engine, to ride from where the engine and box car were coupled •together? A. No.
“14. Did any employé of the defendant company know that Dexter F. McCall}' was going to attempt to ride on the pilot, until after he had gone on the pilot and the engine was passing along the track toward the coal cars ? A. No.
“15. Do you find that at the time Dexter F. McCally was injured that there was a violent snow-storm in progress? A. It was snowing, but not violent.
“16. Do you find that at the time Dexter F. McCally went upon the pilot to ride, the ground was covered with snow, and a snow-storm was then in progress, and had been for several hours, and the rails were wet and slick? A. The ground was covered with snow; had been snowing for several hours; and the rails were not wet.
“17. Do you find that Dexter F. McCally was a careful and prudent man? A. Yes.
“18. Was Dexter F. McCally guilty of any negligence ■proximately contributing to his death? A. No.
[No number 19.]
“20. What was the distance from where the engine and box car were coupled together, to where the coal cars were on the track ? A. About eighteen hundred feet.
“21. Do you find that it was necessary, in order to get the coal cars in the yard, to couple the box car in front of the ■engine, and push it ahead of the engine to the Coal cars, and then couple the coal cars to the box car? A. No.
“ 22. Do you find that in shifting the cars on the track in the yard at Leroy station the morning that Dexter F. McCally was injured, Henry Snyder, the engineer, was under "the direction of Dexter F. McCally and James P. Calloway, .and that Dexter F. McCally signaled the engineer on to the track where the engine was coupled to the box car? A. Yes.
“23. Do you find that after Dexter F. McCally signaled the engineer to come on the track where the box car stood,*645 that he then coupled the engine to the box car and voluntarily got on the pilot to ride over the track to where the coal cars stood ? A. To the first question, yes. To the second question, no.
“24. Do you find that at the time Dexter E. McCally coupled the engine and box car together, and got on the pilot to ride, that he knew the loaded cars stood on the same track, and that the engine would drive the box car ahead of it to the coal cars, for the purpose of coupling to them and drawing them out onto some other track of the yard ? A. Yes, but he had to get onto the pilot to, make the coupling.
“25. Could Henry Snyder, the engineer, as he drove his' engine toward the coal cars with the box car in front of him, see the coal cars on the track? A. Yes.
“26. Do you find that at the time Dexter F. McCally went upon the pilot to ride, he was acquainted with the condition of the yard at Leroy station ? A. No evidence that he went upon the pilot to ride, nor that he was acquainted with the condition of the yard at Leroy station.
“27. Do you find at the time Dexter F. McCally was injured the wind was blowing from the west, and it drove the smoke and steam ahead, so as to prevent the engineer from seeing objects ahead of the engine? A. No.
“28. Would Dexter F. McCally have been injured if he had got in the cab, or on the tender, to ride over the track from where he coupled the engine and box car together, to the coal cars? A. We don’t know.”
' Giving the facts attending the injury to McCally more in detail than stated in the answers to the special interrogatories by the jury, we gather from all the evidence in the record, that the engine in use that day was not a switch engine prepared especially for use in the yard, with foot-boards and handrails in front of the engine and in the rear of the tender, for the employés to ride on while engaged in the duties of switching, but was an ordinary freight engine that was being used daily to draw freight trains. There was no switch engine in use at the Leroy yards, the switching all being done by the freight engines. The engineer Snyder and the fireman both testify that they did not see any signals given by the brakeman Calloway, who was on the top of the box car, after he gave the one to start. The engineer estimates the distance
I. The first complaint is the refusal of the trial court to strike out as redundant and irrelevant all the allegations of the petition reciting the action of Calloway, and the result of the collision on him. While these matters were not absolutely necessary allegations, and were more a matter of evidence than pleadings, perhaps, yet as all these things appear in the evidence contained in the record of the case, we may put it in the strongest possible light for the plaintiff in error, and waive all defects as to the certainty of the motion, and then it does not appear to be such a material error that the judgment ought to be reversed because of it. A general rule founded in the nature of things and based on evident principles is, that a motion to make a petition more definite and certain, by striking
III. We come now to the controlling question in this case. The railroad company seeks to avoid liability on the theory and for the reason that the deceased voluntarily assumed a position of great danger, and thereby directly contributed to the injury that resulted in his death. It may be admitted that McCally voluntarily assumed his position upon the pilot of the engine; and yet this voluntary choice of position must be viewed in the light of the surrounding circumstances, and especially must it be considered with reference to these accompanying facts:
First, No switch engine with foot-boards and hand-rails had been provided by the company for use in the yards at Leroy.
Second, The switching was being done with an ordinary freight engine.
Third, Had a switch engine been in use on that occasion,
Fourth, It is conclusively established that a switchman would necessarily have to get on the pilot of the engine to make the coupling to the box car.
Fifth, McCally had duties to perform in switching and coupling that compelled him to ride on the engine, and he had an absolute right to be somewhere on the engine. He had no duties to perform that entitled him to be in the cab.
Sixth, He assumed a position on the freight engine as nearly corresponding to what would have been his proper position on a switch engine, as the structure of the freight engine would permit.
The assumption that the position was a dangerous one, and that it was deliberately chosen by the deceased, is the most favorable view that can be taken in favor of the plaintiff in error; but when such assumption is modified by all these accompanying facts and circumstances produced by the action of the railroad company, and in no manner controlled by the deceased, or in any way affected by his action, it seems clear that the decision of the case ought not to be controlled by the principle contended for. If the record had presented a state of facts that justified the court in saying that the railroad company had performed all that reasonably could be required of it, in furnishing the employés the usual machinery and appliances for the discharge of the ordinary duties of the employment, and that these were in good condition and reasonably safe, then under such circumstances the voluntary choice of a more dangerous position than the one ordinarily taken by the employé would relieve the company from all liability for injury occurring. But there is a conflict in the evidence as to whether this position on the beam of the pilot of the engine is a dangerous position or not, and hence the assumption upon which we have been proceeding heretofore is not necessarily to be taken in order to sustain this judgment.
There is some evidence in the record from experienced railroad men, that the position is not more dangerous than that
There was another serious conflict in the evidence as to the usual custom of brakemen in that yard and on that road, riding on the pilot of the freight engines that were engaged in switching. An experienced brakeman who worked for the company testified that in the yard at Leroy, and in fact on all that road, it was the usual place for the man who made the coupling to take position on the pilot of the engine; and that in his judgment it was the proper place for a man to take who was making couplings ahead of the engine. A conductor examined as a witness for the company said that he had seen brakemen riding on the pilot when switching cars at Holden, on the Missouri Pacific Railroad, and that he had seen them sitting on the beam with their feet drawn up under them. Snyder, the engineer, testified that he had occasionally seen the brakemen riding on the pilot. It would naturally follow from such proof that the jury would conclude that McCally had assumed the usual position that custom in that yard had sanctioned, when he placed himself on the beam of the engine; that this custom was known to the company; that it was a necessity arising from the structure of the engines used in switching, and that the company had suffered and allowed it to be done; that the deceased had only done what his observation and experience had shown to have been done by other
Neither does this case fall within the rule announced by this court in the case of U. P. Rly. Co. v. Estes, 37 Kas. 715, for in that case the injury occurred on a regular switch engine, provided with front and rear foot-boards and hand-rails, and the injured employé voluntarily selected a cab-step to ride on. In this case, no special provision is made for the employé to ride; no special place is provided for him; he is expected to ride, of course, and in doing so must be governed by the de
There is another principle applicable in this case, that does not reach the facts of the reported cases, and that is this: It was the duty of the railroad company to provide a switch engine for use in its yards at Leroy, because that is the ordinary and usual appliance for performance of such work; and because it is ordinarily safe for the employés of the road engaged in such service; and they are entitled to this reasonable degree of protection. The railroad company failed to do this, but required such work to be performed by the ordinary freight engine between trips, and by this failure, as well as by the instrumentalities employed, it subjected its employés to perils and hazards against which it could have guarded, by the exercise of ordinary care and caution in supplying the yard with an engine properly constructed for such service. It cannot be disputed but that it is more dangerous to switch with a freight engine than with one prepared especially for that purpose. It is a universal rule that the employé risks the dangers which ordinarily attend, or are incident to, the branch of the business that he voluntarily engages in for compensation ; but it is equally implied, and public policy requires it, that the railroad company shall supply the usual reasonably safe appliances and machinery for such work. Applying these rules to the facts in this case, and while it may be said without qualification that McCally assumed all the risks and perils attending the use of a switch engine in the yards, because as a brakeman he knew he would have such duties to perform, it is not so clear that the use of ordinary freight engines with which to do the switching and other yard duties, was within the contract of employment. In other words, McCally had a right to assume that a switch engine would be
This record discloses that the immediate cause of the death of McCally was the reckless conduct and gross mismangement of the engineer in charge of the freight engine that was being used in doing the switching. He drove the box car against the loaded coal cars that stood upon the side-track, at such an unusual rate of speed that the most ordinary mind could understand that great injury would inevitably follow. He disregarded, and probably disobeyed, the signals of the brakeman upon the top of the box car. The excuse he gives exasperates the offense. His claim is that there was a blinding snowstorm, and the direction of the wind was such as to blow the smoke of the locomotive into the cab, so that he could not even see the brakeman on the top of the car only twenty-five feet distant. If these facts existed, they were calculated to make any ordinary man in his sober senses more careful and prudent. He does not seem to have been warned by the customary instinct of self-preservation. After the fatal result of the collision, he now says that he gave the engine steam and opened the sand lever and reversed the engine at least one hundred and fifty feet away from the coal cars. He did
IV. The last contention of counsel that is necessary to notice is, that the court erred in allowing the plaintiff below to •amend his petition after judgment so as to make it conform to the facts proven on the trial. The petition alleged that at the time the injury occurred the deceased was standing on the ■steps of the pilot; but after the trial the plaintiff asked, and the court granted him leave, to amend the petition by alleging—
“ That after coupling said engine and box car together, said*654 Dexter F. McCally remained standing on the steps of the pilot of said engine, the usual place at which brakemen stand when engaged in switching cars on side-tracks in this manner and for such purposes, for a short time, when he ascended to the platform to which the pilot was and is attached upon said engine, and sat down thereon immediately in front of the boiler head and behind the pilot beams — being the large beam to which the pilot is affixed — with his feet drawn up under him.”
Taking into consideration all the material facts and the principles applicable to them, we are satisfied that substantial justice has been done the parties to the action, and that there are no errors prejudicial enough in their character to justify a reversal of the judgment.
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.