Southern Kansas Railway Co. v. Moore

49 Kan. 616 | Kan. | 1892

The opinion of the court was delivered by

Horton, C. J.

It is contended upon the part of the railway company that Moore is not entitled to recover, because the special findings of the jury show that there was no negligence in any of the oth,er employee of the company; further,, because Moore voluntarily and without objection undertook to perform the work in which he was engaged, in the manner it was done, with full knowledge of all danger and risk, and that he was guilty of contributory negligence. Moore, in his petition, alleged that on December 8, 1886, the railway company had a material yard at Arkansas City, in this state; that he was employed there in loading and unloading-upon railroad cars steel rails, etc.; that the company negligently failed to have a sufficient number of competent laborers to perform the work required; that it employed unskillful and incompetent laborers; that it failed to provide a sufficient number of cars to enable the work to be carried on with safety ; that the foreman of the company negligently omitted to give proper supervision in the loading and unloading of steel rails, etc., and that the empl.oyés of the railway company, other than Moore, carelessly and negligently performed their work and labor, so that a steel rail weighing 560 pounds was thrown and fell with great force upon the foot and ankle of Moore, greatly injuring the same. The answer contained a general denial, and alleged that the negligence was the result of inevitable accident and want of care on the part of Moore.

From the evidence of Moore, it appeared that some two-months prior to the accident he was employed by the railway company in its material yard at Arkansas City, this material yard being used as a place to receive and forward materials along the line in the construction of the railroad. Most of the time he was engaged in loading and unloading steel rails from one car to another, but when not engaged in this, he, with other men, was required to do whatever other work they might be put to. Eails would come into this yard loaded on cars, and would have to be unloaded and placed upon flat cars to be taken out on the line of the road. Prior to the accident, the general method adopted was as follows: Two flat' cars adjoining each other would be placed next to the car which contained the rails intended to be unloaded* What was known as a “dolly,” consisting of a round iron eight inches through and resting in a frame, would be placed at the end of the flat car adjoining the stock car, or other car containing the rails. Two or three men would lift an end of the rail from the stock car and place it on this dolly. A hook attached to a rope would be hooked in the hole of the bolt near the eñd of the rail, and six men would take hold of this rope and pull the rail along until the other end reached the dolly. This rope was about 10 feet long. The rails were about the length of a flat car, that is, 30 feet, so that in doing this work it would be necessary to run upon the adjoining flat car, and when the rail was pulled nearly off the dolly, one end of it would rest upon the flat car and the other end upon the dolly. A man at the dolly, with a steel fork, would turn the rail over and off the dolly, letting it drop upon the bottom of the flat car. This dolly was some 8 or 10 inches in height. On the day of the accident, two empty flat cars were run together. At the north and south ends of these two cars, two other cars, one being a coal car and the other a stock car, both loaded with rails, were placed. A gang of men was set to work to unload the rails in the same manner from the stock car onto the flat car adjoining it. Moore, with a gang of men, consisting of the same number as had always been employed, was set to work to unload the steel rails from the coal ear onto the flat car adjoining it. The difference in the method of doing the work on the day in question from the way in which it had been done prior thereto was, that the respective gangs would have to run upon the other cars which were being loaded; that is, Moore and a gang would have to go a short distance on the adjoining flat car, which was at the same time being loaded by another gang with steel rails, and the other gang in their turn, would have to go upon the flat ear which was being loaded by the plaintiff and his gang. After they had been working some little time, Moore, with a gang, started to run a rail onto the flat car, and had proceeded onto the other car, just at the time when the man at the dolly on the other car was turning the rail over in order to let it drop from the dolly. ' The rail dropped off the dolly, rolled, and struck plaintiff’s foot and nearly cut his big toe off at the front joint, and also smashed the toe next to it, and otherwise injured his foot. The men on the other car had gone back, and the man at the dolly was in the act of throwing a rail over, when Moore got on the car. He was near the middle of the car when it fell on him.

Moore testified, among other things, that —

“ Ques. When you were standing over there, some of the parties, whose business it was to do that, turned the rail over? Ans. We were not standing, we were running.

“Q,. How far had you got when this rail rolled onto you? A. I don’t know; I was running; when it fell upon my foot I didn’t think about measuring the distance; I was far enough so I saw the north end of their rail was upon the car, was down on the car; the south end was up I suppose eight inches, maybe ten — I judge eight inches; that was far enough so that when it fell over it fell and kind of rolled and the ball struck my ankle here; the rail was that high where I was.

“Q,. As high as your ankle? A. Yes, sir.

“Q. You knew how these rails run out there? A. Yes, sir.

“Q. You had been working at that for some time? A. Yes, sir.

“Q,. You knew all about it, how they shifted the cars to load on these flats? A. Yes, sir.

“Q,. You knew they came out upon the car, and one end would be down on the car and the other on the dolly? A. Yes, sir.

“Q,. You knew when that was done some one would go and turn it over to its place? A. I knew it would be done; I knew it should have been done before we got there. When we got our rail started we could n’t stop and they knew it, consequently they should not have turned their rail until we got stopped and got off.

“ Q,. Did you see them there before you started with your rail? A. I suppose I did.

“Q,. Then why did you start with your rail the time you saw them there? A. Why does a man do anything working for a foreman when he tells you to do it?

“Q. Was there a foreman there? Was George Brown there? A. If he was not, he should have been.

“Q,. Didn’t you state a while ago that Brown was not there when you received your injuries? A. No, sir; I said I was not certain whether he was right there at the time or not.

“Q. I will ask you, if you saw them there before you started, which you say you did, why did you start that rail the time you did until they got away? A. I was not running the steel gang myself.

“Q. You were running the steel? A. I was helping.

“Q. You were one that helped to run the steel; when you saw them at the place they were putting the rail down, why did you start when they were supposed to be at the other end when you started? A. I don’t know why; if I didn’t, somebody else would; if I had refused to go with the rest of the gang they would have got somebody in my place.

“Q. You knew they would turn the steel over the way they did? A. I knew they would do it; I thought they would wait until we got out of the way of it.

“ Q. When was it they turned the steel over; how far on the car did you get? A. I.do n’t know just how far I had got; one end of the rail was on the car, the other end, I suppose, was eight inches up; the dolly, I expect, was near the end of the rail, within three or four feet; the rails are 30 feet long; I got far enough so that when the rail fell the ball struck me on the ankle.”

The jury made the following special findings of fact:

“Q. Was the defendant guilty of negligence? If so, in what did it consist? State fully. A. Yes; by unloading on curve; by lack of flat car, and absence of boss.

“Q,. Were any of the employés of the defendant guilty of ■ negligence? If so, who, and in what did it consist? A. No.”

The special findings of fact of the jury show that none of the employés of the railway company were guilty of negligence. Of course, if none of the employés of the company were guilty of negligence, Moore is not entitled to any recovery. A railway company, in the operation of its road, and in carrying on its work, can only act through its agents or employés. (Insurance Co. v. Munger, ante, p. 178.) If the agents or employés were not negligent, the company was not negligent. But if, as claimed by Moore, the jury intended to only find that none of his fellow-servants or co-employés were negligent, it is equally conclusive, considering the statements of Moore, testified to by him upon the trial, that no liability was established against the company. This court has decided several times that —

“While it is the duty of an employer, whether a railroad company or other corporation or person, to make the work of his or its employés as safe as is reasonably practicable, yet when the employé, with full knowledge of all the dangers incident to or connected with the employment as it is conducted, accepts the employment, or, having accepted the same, continues in it with such full knowledge, and without any promise on the part of the employer, or any reason to expect on the part of the employé, that the employment will be made less dangerous, the employé assumes all the risk and hazards of the employment.” (A. T. & S. F. Rld. Co. v. Schroeder, 47 Kas. 315; Rush v. Mo. Pac. Rly. Co., 36 id. 129; Clark v. Mo. Pac. Rly. Co., 48 id. 654; 29 Pac. Rep. 1133.)

Moore knew that the steel rails were being unloaded on a curve; he knew of the lack of a flat car and of the absence of the boss; he, therefore, had full knowledge of all the risks and hazards of his employment. As the jury found that the employés of the railway company, or, as this finding is interpreted by tbe plaintiff below, the co-employés of the company, were not guilty of any negligence, if Moore, knowing the dangerous character of the work, undertook the same, although unwillingly, for fear of losing his employment, and was injured, he has no cause of action. (See cases above cited, and Leary v. B. & A. Rld. Co., 139 Mass. 580; Coyne v. U. P. Rly. Co., 133 U. S. 370; Aerkfetz v. Humphreys, 145 id. 418.)

In view of the findings of the jury and the evidence of Moore, the judgment of the district court must be reversed, and the cause remanded, with direction to the court below to render judgment for the railway company.

All the Justices concurring.