97 Kan. 455 | Kan. | 1916
The opinion of the court was delivered by
Walter Pyles, the engineer of an incoming extra freight train, was killed in a collision with a switch engine, attached to a number of box cars, at work in the yards of the Santa Fe company, at South Winfield. Under the federal employer’s liability act his widow recovered a judgment for $12,000 against the company, and it appeals.
The- defendant maintains that the accident was the result solely of the negligence of the decedent in passing the yard limits without having his train under control, contrary to the rules of the company. The petition alleged various forms of negligence, but the basis of liability adopted by the jury was the failure of the switching crew to keep out of the way of the incoming train.
These facts are covered by the special findings, or shown by evidence which is not disputed: The track from the South Winfield station runs somewhat east of south; at about a thousand feet from the station it curves to the east for a like distance, and then maintains a steady curve to the west until it crosses the Walnut river, just south of which it curves back to the east, before again making a turn to the west. The house track switch, near which the yard crew were working when the accident occurred, is about half a mile south of the station. The collision took place some 900 feet south of the switch. The north end of the bridge over the river is 1315 feet further to the south, and the yard limits 655 feet beyond that. The wreck occurred between nine and ten o’clock on a dark and rainy night. Shortly before it took place the switch
(1) The jury returned an affirmative answer to the question : “If the deceased, Walter Pyles, had had his engine and train under control, as required by the rules, when he entered the yard limits at South Winfield on April 1, 1912, would the accident have happened?” This finding, among others, is attacked by the defendant as without support in the evidence. “Under control” was defined by the rules as meaning — “ability to stop a train within the distance track is seen to be clear.” Inasmuch aá the switchman’s flag, or signal made by swinging his lantern across the track, given while the incoming train
(2) The defendant maintains that upon the evidence and findings judgment should be ordered against the plaintiff, on the ground that they show the accident to have resulted solely from the negligence of the decedent, no other employee of the company having been at fault. The decision of this question turns in part upon the construction and application of a rule reading as follows, particularly with respect to the phrase here italicized:
“Stations having yard limits will he designated in special rule in time-table. [South Winfield was one of the stations so designated.] All trains and engines will have the right to work within such yard limits regardless of second or third-class trains or extras, but will give way as soon as possible upon their approach. All except first-class trains will approach yard limits under control, and responsibility for accident at such points will rest with the approaching trains.”
As the defendant interprets the rule, the approaching train having been an extra, the switching crew were under no duty to keep out of its way for the purpose of avoiding a collision; the requirement that they should give way “as soon as possible” meaning merely that they should be diligent in getting out of the way in order not to delay traffic more than was necessary. The plaintiff, however, insists that inasmuch as those in charge of the switch engine, while they were still at the station, saw the reflection of the headlight of the approaching train and knew that it would arrive shortly, the rule made it their duty to get off the main line immediately, leaving a
(3) On the other hand, the rule can not be regarded as exempting the switching crew from taking any precautions to avoid a collision that under all the circumstances would constitute an exercise of reasonable care. Such a construction would render it unreasonable and void. (Chicago, Rock Island Ry. v. Wright, 239 U. S. 548; Southern Ry. Co. v. Craig, 113 Fed. 76.) The jury found specially that the liability of the defendant was based upon the negligence of the switching crew in not getting off the track on the approach of the train; that únder the rules they had no right on the main track because they had notice of the approaching extra by the reflection of its headlight. These findings indicate the adoption of the theory that the switch engine should have been 'sidetracked as soon as the reflection of the headlight of the train was seen in the distance. But the jury also found that when the engine of the train was on the bridge its rate of speed showed the switching crew that its engineer was not going to obey the rule. An instruction was given that from the time the employees had notice of this fact it was their duty to exercise ordinary care to avoid a collision. This is objected to on the ground that it was conclusively shown that they had no such knowledge until
(4) The defendant complains of an instruction reading as follows:
“It was the duty of the Railway Company ... to provide suitable means whereby those managing trains may have notice of switch engines and trains upon its tracks in such positions as are likely to be dangerous to such employees, and to exercise ordinary care in order not to place such switch engine or other obstructions upon its tracks without such notice, in such a position as to be likely to endanger those engaged in managing other engines or trains.”
It argues that the rule already quoted was the means provided for the end indicated; and that therefore an instruction given elsewhere, that the rules introduced in evidence were “reasonable and sufficient,” amounted to a statement that sufficient means had been adopted to advise the crews of incoming trains of the presence of engines and cars on the track. The argument gives too much scope to the word “sufficient,” which must be taken to mean sufficient for the particular and limited purpose to which the rule was directed — not sufficient to cover the whole field and give all the protection needed by those for whose benefit it was promulgated. There was some evidence from which an inference might be drawn that the deceased engineer, being unfamiliar with the run, and unable by reason of the weather to tell when he had reached the yard limits, passed them at a high speed without knowing it. Whether the rules gave all the protection reasonably needed to meet a situation of that kind was a fair jury question.
The judgment is reversed and the cause remanded for a new trial.