97 Kan. 715 | Kan. | 1916
The opinion of the court was delivered by
The action was one to recover damages for personal injuries inflicted upon the plaintiff, who was an employee of the defendant, by being struck by one of the defendant’s switch engines. The plaintiff recovered and the defendant appeals.
The accident occurred in the defendant’s yards at Horton, where it maintains, among others, three parallel tracks running east and west which are known in order from south to north as track No. 1, Kansas main line, and Nebraska main line. These' tracks are of standard gauge — four feet, eight and one-half inches — are about ten feet apart, and are connected by crossovers. In the eastern portion of the yards is a caboose track extending from the Kansas main line across track No. 1 in a southwesterly direction. In the western portion of the yards and north of the Nebraska main line is a roundhouse. The plaintiff was head brakeman of a freight train which came into the yards from the west on track No. 1. When the train arrived a switch engine was using the caboose track. The road engine was detached from the train, waited for the switch engine to clear the track ahead of it, and then moved forward, took a crossover to the Nebraska main line, and backed toward the roundhouse, which was its destination. The way car of
The principal contentions of the defendant are that the engineer of the switch engine was not guilty of negligence, that the plaintiff assumed the risk of being injured as he was, that
The court is of the opinion there was sufficient evidence of negligence to carry the case to the jury. The road engine stopped to deliver the hot-box cooler approximately 1120 feet west of the point at which it passed the switch engine. While the road engine was going that distance at a rate of fifteen miles per hour and was slowing down to a stop, the switch engine backed several feet to the caboose, coupled to it, started up and overtook the road engine. While there was evidence that the bell on the switch engine was ringing, the plaintiff heard no bell and the engineer of the road engine heard no bell. The whistle of the switch engine was not sounded. The clear space between the tender of the road engine and the pilot bar of the switch engine was approximately five feet. The plaintiff’s body and the cooler in his left hand reduced this space. The blasts of the road engine whistle were given as a signal to the rear brakeman and the purpose of signaling him was to have him come and get the cooler. The rear brakeman, who was inside the way car when the signal was given, understood the signal, understood it was given for him, and went out of the way car to get the cooler. A rule required the engineer of the switch engine to run with his engine under control, that is,' to be able to stop within the distance the track was seen to be clear of obstruction. The engineer of the switch engine plainly saw the plaintiff’s position on the tender of the road engine all the way to the place where the plaintiff alighted, observed that the plaintiff’s back was toward him, saw that he had the cooler in his hand, knew where the cooler was carried on the freight train, and knew that its place when not in use was in the way car. The engineer of the switch engine heard the signal to the rear brakeman, observed the fact when the road engine commenced to slow down, and observed the. fact that he was gaining on the road engine. The speed of the switch engine was not slackened and its engineer saw the plaintiff step to the ground opposite the way car with the cooler in his hand when within eighteen or twenty feet of him, but it was then too late to avoid a collision. The engineer of the switch
“Q. You knew that if Roekhold got off of that engine and started across the track with that Keeley, that your engine would hit him? A. Not necessarily; if he staid within the 6 or 7 feet there is between the two tracks, I could n’t hit him and he could n’t be hit.
“Q. You did n’t think he was going to take that Keeley to the roundhouse? A. They do do it.”
Very likely this kind of testimony did not help the defendant’s case, and the jury were warranted in believing that the engineer of the .switch engine understood the situation perfectly, knew the cooler was to be left at the way car, knew that the road engine was stopping opposite the way car and several hundred feet from its destination for that purpose, and knew that the plaintiff, whose face was toward the west, would drop off the tender to icy ground with the cooler in his hand in the very narrow space between the tracks. If the jury so believed, it was a fair question whether or not the engineer of the switch engine should have sounded the whistle when he saw he was overtaking the plaintiff, and should have had his engine under control, regarding the plaintiff, under all the circumstances stated, as a very probable if not a certain obstruction to the switch engine’s progress.
The defense of assumption of risk was eliminated by chapter 239 of the Laws of 1911, which contains the following provision :
“That every company, corporation, receiver or other person operating any railroad in this state shall be liable in damages to any person suffering injury while he is employed by such’carrier operating such railroad . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier.” (§ 1.)
The provision quoted is in effect a continuation of a statute originating in 1874 and given different forms in 1903, in 1905, and in 1907. (Laws 1874, ch. 93; Laws 1903, ch. 393; Laws 1905, ch. 341; Laws 1907, ch. 281.) In the case of Railway Co.
Contributory negligence of the plaintiff did not constitute a bar to the recovery of damages, and could be considered only in diminution of damages. ■ (Laws 1911,- ch. 239, § 2.) The jury were justified in relieving the plaintiff of great fault, and presumably the amount of negligence attributed to him was small. The plaintiff was in the discharge of duty in riding where he did and in alighting when he did. He testified he did not know the caboose was to be brought westward by the switch engine on the middle track, and did not expect the switch engine to come up to the vicinity of the way car on that track. When the road engine commenced to slow down he looked back over his left shoulder to see that there was nothing on the middle track. It was his duty to look and he did look, because, as he said, it is natural for a man who works in the yards to do so. Looking over his left shoulder he could see toward the east six or seven car lengths (240 to 280 feet), and he did not see the switch engine. He heard no bell, heard no whistle and heard no noise of a moving train until he had released his hold of the grab iron and his feet were in the act of striking the ground. From sounds made by the switch engine on the rails and the exhaust he could then tell that the engine was coming at a rapid rate of speed. The fault of the plaintiff lay in not looking over his right shoulder or in not looking again just before he alighted. Had he done either of these things he could have seen the switch engine. However, under all the circumstances stated, he took a fair measure of precaution for his safety, and the amount of his recovery should not have been greatly diminished because he did not take measures to assure himself beyond all doubt. There were no special findings, and it can not be said as a matter of law that the jury did not deal justly with the subject.
The defendant’s negligence was clearly the proximate cause of the injury. The two causes contributing to the plaintiff’s injury were not distinct and independent of each other (Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338), but were re
The plaintiff testified that after he was injured he'suffered from impaired eyesight, impaired hearing, and an impediment in his speech. He further testified that he had lost from thirty-two to thirty-five pounds in weight, that he suffered from weakness and dizziness, suffered continually from pains in his back' and in his head, that he was very nervous, especially when he worked hard, suffered from lack of sleep and had lapses of memory, and that because of these physical conditions, none of which existed before the injury, he was incapacitated to perform the only kind of labor he was fitted to perform. The plaintiff was injured on December 29, 1913. He was taken to the private hospital of Dr. Reynolds, in Horton, where he remained one week. No bones were broken or dislocated and the doctor said he found no contusions on the defendant’s body. There were abrasions on the bridge of the nose, the right eyebrow and right cheek. The doctor said that the plaintiff’s •stunned and unconscious condition was temporary only, that there was nothing to indicate permanent injury, and that when he left the hospital “he was all right in every way.” There was a dressing still on his face and the cinder stains where cinders had been ground into his face were so deep as to be permanent. Another doctor, Doctor Nichols, was called on January 6, 1914. He found the plaintiff’s head bandaged and treated the plaintiff several times at the plaintiff’s home and then at the doctor’s office. There is no evidence abstracted that this doctor made any examination of the plaintiff whatever except with respect to the injuries to his face, of which the plaintiff was then complaining. The plaintiff’s eyes were tested some months before he was injured and again in February,
The judgment of the district court is affirmed.