95 Kan. 451 | Kan. | 1915
This is an action for damages for personal injury. The plaintiff recovered judgment for $12,500. The defendant appeals.
The plaintiff, a brakeman, was injured by a car door falling on his head. The negligence alleged is that the defendant did not inspect the car at its yards in Kansas City, Mo., and sent the car out with defective hangings for the door. The defenses are, a general denial, contributory negligence on the part of the plaintiff, assumption of the risk by him, and a release and settlement given by him to the defendant. The plaintiff’s reply is, that the release was procured by fraud.
The defendant was operating an interstate railroad between Kansas City, Mo., and Fort Scott, Kan. The plaintiff was employed on that road as a brakeman. He left Kansas City, Mo., November 12, 1912, at 9:15 p. m., with a freight train, bound for Fort Scott, Kan. It was his duty, when the train stopped, to examine the cars for any defect that might appear, and so -far as he could, repair such defect. This train stopped at Olathe, Paola, and Pleasanton, reaching Pleasanton at 2:47 a. m., November 13, 1912. At Pleasanton the plaintiff discovered a car door hanging by one hanger or roller. He attempted to replace the door, when it fell on him, struck him on the top of his head, and fractured the inner plate of his skull. The iron bar or rod upon which the car door moved was bent, and the holes through which the bolts containing the hangers passed were enlarged so that they would not hold the bolts. The plaintiff had examined the cars at Olathe and Paola, and this car door appeared all right at both places. ■ The plaintiff returned to his home in Kansas City, remained there a month or so, and finally went to the Frisco hospital in St. Louis. He remained there twenty-nine days, and was then released. At the time he was released he had conversations with physicians
The jury made the followng special findings:
“1. Was plaintiff induced to sign a written release to the defendant for damages, for plaintiff’s alleged injuries at Pleasanton, Kansas,' on the occasion complained of, by reason of any fraud on the part of the defendant? Ans. Yes.
“2. If you answer the preceding question in the affirmative please state fully in what the fraud consisted and by whom the fraud was committed. Answer : By representing to plaintiff that he was all right and able to go to work — by Doctors Kale and Farris. And also by the claim agent, Mr. Rogers — representing that his position would be waiting for him when he got back to Kansas City.
“3. If you find for plaintiff, please state fully in what respects, if any, defendant was negligent on the occasion complained of, and through what employees, if any, defendant was thus negligent. Answer: By allowing this car to go out on the road with a door in a dilapidated condition. No evidence to show what employee negligent.
*455 “4. Please state fully at what place or places, if any, on the trip or run in question, the plaintiff inspected car No. 46,597, mentioned in evidence, before he inspected it at Pleasanton, on the occasion complained of. Answer: Paola and Olathe.
“5. Was the car door in question off the track and hanging by only one hanger when the car left Kansas City, Missouri, in the freight train mentioned in evidence? Answer: No.
“6. Do you find that ordinarily a freight car door off the track and hanging by only one hanger was apt to fall' over, as the one in question did, if a brakeman attempted to lift it back in the manlier plaintiff did, on the occasion complained of? Answer: No.
“7. Do you find from the evidence that on said occasion plaintiff was guilty of contributory negligence? Answer: No.
“9. Do you find that the car door mentioned in evidence fell on plaintiff’s head on the occasion complained of, as a result of his lifting off the track the remaining hanger by which said car door was hanging ? Answer: No.”
We will follow the defendant’s complaints in the order set out in its brief.
(1) The defendant contends that the demurrer to the plaintiff’s evidence should have been sustained; (a) because that evidence showed that the plaintiff assumed the risk of the injury alleged; (5) because it did not establish any alleged ground of negligence; (c) because it did not establish fraud in the settlement made by the plaintiff with the defendant.
(a) Did the plaintiff assume the risk of the injury alleged ? He was a brakeman. He assumed the risk of injury resulting from that employment, but not the risk resulting from defects caused by defendant’s negligence of which defects he had no knowledge. We may say that he assumed the. risk involved in doing anything connected with his work, when working with a defective instrument, knowing what the defect was. At Pleasanton, the plaintiff found the car door hanging by one hanger. He attempted to replace the door.
The defendant argues that the plaintiff was an inspector, a repairer; and that when inj ured he was engaged in making an unsafe place safe. Numerous authorities are cited, giving the law concerning the assumption of risk by these classes of employees. The plaintiff was not an inspector or a, repairer, as those terms are used in the law of master and servant; neither was he engaged in making an unsafe place safe, as that expression is used in the decisions.
(b) The defendant next argues that there was no proof of the negligence alleged; that there was no proof that the car in question was in the train at or leaving Kansas City. We can not agree with the defendant in this matter. The train consisted of thirty-nine or forty cars, run from Kansas' City to Fort Scott, and stopped on the- way at Olathe, Paola and Pleasanton. The plaintiff passed this car in looking over the train at Olathe, Paola and Pleasanton. It must, have been a part of the train when it left Kansas City or it would not have been in the train at the places named.
. (c) The defendant argues that the settlement and release was admitted by the plaintiff, and that his evidence does not show that the settlement and release was procured by fraud. The defendant in its brief
We are of the opinion that the demurrer to the evidence was properly overruled.
(2) The defendant contends that on hotly contested issues of fact presented by the evidence the lower court permitted doctors, testifying for plaintiff as experts concerning his condition and injury, to give opinions admittedly based on the history of the case. Dr. S. A. Mabry, of Kansas City, testified concerning the plaintiff’s injury. His opinions were based partly upon the history of the plaintiff’s case as it was related to him. This was improper, under A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 463, 466; Telegraph Co. v. Morris, 67 Kan. 410, 413, 73 Pac. 108; Betterment Co. v. Reeves, 73 Kan. 107, 84 Pac. 560; and Ballard v. Railway Co., ante, p. 343. A portion, but not all, of the testimony of Dr. Newman is subject to the same objection. Dr. Newman made an X-ray picture of the plaintiff’s head. This picture showed a fracture of the. inside plate of the plaintiff’s skull, a spicula of bone extending from three-eighths to a half of an inch into the brain cavity. This witness had the plaintiff under observation for a couple of days, and noticed his conduct
(3) Complaint is made concerning the evidence of the plaintiff, in which he testified that one of the defendant’s officers, Superintendent Coppage, said to him, “We have got a report here from St. Louis Hospital which states that you are an incompetent man to keep
(4) Defendant complains of error in the instructions given, in the following particulars: (a) the assumption of risk; (b) the negligence of the defendant; (c) the duty of the jury; (d) plaintiff’s right to assume that defendant had performed its duty; and (<?) contributory negligence of plaintiff.
(a) Complaint is made that the lower court instructed the jury that the only risks assumed by plaintiff were those ordinary risks which he assumed on entering the employment, as incidental thereto, and that such ordinary risks were only those which occurred after the employer has used reasonable and ordinary care to furnish the employed with a reasonably safe place to work and with reasonably safe appliances with which to work. The defendant argues that if the defendant was not negligent it was not liable in any event; that if the jury thought it was negligent, still the plaintiff could assume even those risks arising from such negligence, provided he understood and appreciated them and incurred them without protest or promise of repair.
The weakness in this argument is, that the plaintiff did not know of the defective condition of the rod and of the door hangers. It does not appear that the de
We have discussed assumption of risk in another part of this opinion.
(6) Complaint is made of the instruction concerning defendant’s negligence in sending the car out of Kansas City in bad order. It is argued that there was no evidence to show that this car was put in the train at Kansas City. This question has been disposed of. It is further argued, that'there was no proof that inspections were made at terminal points. It was the duty of the defendant to see that its cars were in a reasonably safe condition. If it sent the cars out in bad condition, it was negligent somewhere.
(c) It is claimed that the court erred in instructing the jury as follows:
“After having carefully considered all the evidence in this case, bring to your assistance your good judgment, common sense, observation and experience in life, and say what weight should be given to the statements of each witness and find by your verdict what is the truth upon the issues joined in this case.”
The defendant cites U. P. Rly. Co. v. Shannon, 33 Kan. 446, 6 Pac. 564; Waite v. Teeters, 36 Kan. 604, 14 Pac. 146; Clark v. Ford, 7 Kan. App. 332, 51 Pac. 938, in support of its complaint. In U. P. Rly. Co. v. Shannon, supra, this court said:
“A jury are not to use their own judgment in making up a verdict upon a subject calling for particular knowledge or experience, not within the general knowledge they have in common with the rest of mankind.” (Syl. ¶ 1.)
This permits the jury to use the general knowledge they have in common with the rest of mankind. In Waite v. Teeters, supra, the direction to the jury that they might use their general knowledge in determining value was held misleading and erroneous. In that case there was no evidence on the subject, and the value under consideration was not one common to persons
The instruction here complained of is not open to the criticism made of the instructions in either of these three cases. How are jurors to arrive at verdicts if the rule embodied in this instruction is not followed ? If their good judgment, common sense, observation and experience in life are not to be used by jurors in reaching their conclusions, verdicts will be more unsatisfactory than at present. It is impossible for a juror or any other man to come to any correct conclusion on any subject without using the means here complained of. (Missouri River R. R. Co. v. Richards, 8 Kan. 101; Craver v. Hornburg, 26 Kan. 94; Sanford v. Gates, 38 Kan. 405, 16 Pac. 807; Young v. Irwin, 70 Kan. 796, 798, 79 Pac. 678; Cloud County v. Morgan, 7 Kan. App. 213, 52 Pac. 896; Note, 37 L. R. A., n. s., 790, 793.)
(d) The defendant complains that the trial court instructed the jury that the plaintiff had a right to assume that the defendant had performed the duty of exercising ordinary and reasonable care to provide him with a reasonably safe place to work and reasonably safe tools to work with, and to keep them in a reasonably safe condition of repair, and argues that it was through the plaintiff himself that the defendant was trying to ascertain the condition of the cars and the car doors in the train; that for that purpose, the plaintiff was the master; that he had no right to assume anything that the very purpose of his going along the train to inspect the cars and car doors was to see if anything was wrong. The' plaintiff had the right to assume that the defendant had exercised ordinary and reasonable care to see that this car and car door were in proper condition before the car was put in the train, and the trial court was right in so instructing the jury.
(5) The defendant complains of the refusal of the court to give instructions requested by it. These concern (a) making unsafe places safe, and (b) assumption of risk.
(а) The defendant requested the court to instruct the jury that the law requiring the master to provide reasonably safe machinery and reasonably safe places for his servant, does not apply where the servant is engaged in repairing a place which has become out of repair. The plaintiff’s duty to replace the car door did not imply a duty to repair the rod on which the door rolled, or the hangers by which it was suspended. It was the defendant’s duty to see that this rod and these hangers were in proper condition when the car was put into the train. The instruction requested was properly refused, because it did not take into consideration the duty of the defendant.
(6) The defendant requested a number of instructions covering the assumption of risk by the plaintiff. The court, in its instructions, fully covered the law governing assumption of risk by the plaintiff, and it was not necessary to repeat them at the request of the defendant.
(б) The defendant contends that the finding of the jury that the plaintiff was not guilty of contributory negligence was contrary to the evidence and admissions
We have touched upon each proposition argued in the defendant’s brief, and are unable to agree with the defendant in any of its contentions. The judgment is affirmed.