Reich v. Missouri Pacific Railway Co.

72 P. 1101 | Kan. | 1903

Per Curiam:

George Reich was injured while he and Ireland, another section man, were placing a hand-car on the railroad. They carried the hind wheels upon the track, and each taking a corner of the front end carried it around, and while standing upon the stone ballast and endeavoring to pull it up on the track a small stone in the ballast upon which Ireland was standing rolled under his feet, causing him to lose his balance and to loosen his hold on the car. This threw the full weight on Reich and caused the injury. A demurrer to plaintiff’s evidence was sustained, and an examination of the evidence does not disclose culpable negligence on the part of Ireland. The car was loaded in the usual way; both knew that the track was covered with stone ballast, and both were walking over it while placing the car on the track. The suggestion that the injury was due to a jerk or a failure to give notice of a jerk, made to bring the car up on the rails, is not borne out by plaintiff’s testimony. The injury was not due to a jerk, but to the rolling of the stone under Ireland’s foot, which occurred without his fault. It being shown that the rolling of the stone under Ireland’s foot was accidental, and something for which he was not to blame, there is no liability by the railroad company for the result of the accident. The admission of papers identified by plaintiff’s witnesses on cross-examination was not material error.

The judgment will be affirmed.