53 Kan. 414 | Kan. | 1894
The opinion of the court was delivered by
W. W. Painter commenced this action in the district court of Cowley county. A change of venue was taken to Sumner county. The petition alleges, among other things, that, while a passenger on a freight train, in charge of certain live stock which he was shipping, he was injured, through the negligence of the defendant. The particular negligence charged is that-
“ Plaintiff was notified by the conductor in charge thereof that the said train and car of the said defendant would stop on the said road of the said defendant at or near Chanute, at*415 or near the Neosho river, and the said conductor requested this plaintiff that when the train stopped at said station, which he said would be the next time it stopped, that the said plaintiff should get off and go forward to the car in which said stock was, so that the said defendant could water said stock; that, pursuant to said request of said conductor, the agent of said defendant in charge of said train of cars, and alter the said train .and car had stopped as stated it would do, and the said conductor and brakeman left the car, this plaintiff stepped off of said car, at the rear end thereof, and intending to alight on the ground, but said car was standing on a bridge, and this plaintiff, instead of alighting on the ground, stepped onto said bridge, slipped and fell through and over said bridge, dislocating, fracturing and breaking his shoulder,” and causing other injuries. “That it was in the nighttime and of a dark night; that the said defendant wholly failed and neglected to give this plaintiff any notice of there being a bridge there, but, on the contrary, notified him that it was the place for him to get off, so as to designate the cars in which said live stock were, that it might be watered then and there.”.
It is claimed that it was negligent for the conductor to direct the plaintiff to get out of the cars at a place of danger; that the plaintiff had a right to assume that the place where he was told to alight was a safe place. The jury returned a verdict in favor of the plaintiff for $3,000, and judgment was rendered accordingly.
The railway company brings the case here, alleging many errors. It is claimed that the undisputed facts of the case show that the plaintiff’s injuries were the result of his own negligence in stepping off the caboose on a dark night, without taking any light, or making any examination of the place where he was alighting. It is urged that the negligence of the plaintiff was the direct and proximate cause of his injury, and, no matter what the conductor may have said, the plaintiff’s negligence is of such character as to preclude his recovery. There is force in this contention, yet we are not prepared to say that the case is so clear as to make it a question of law for the court. If the conductor was acquainted with the surroundings of the place where the train was to
The principal question of fact litigated was, as to what was said to the plaintiff by the conductor, and as to the manner in which the plaintiff came to be injured. As to conversations between the conductor and the plaintiff, the evidence was- conflicting. The plaintiff himself testified: “He [the conductor] said they would attend to the watering of the hogs. I said that they had promised that before, and the hogs were suffering, and I wanted them watered right away. He said, ‘If you want those hogs watered, there are so many cars that you will have to go forward and get on the hog car.’ And I told him that I could not do that; that I did not like to run on top of the cars, and he said, ‘Damn it, get off on the side and go up to the side of your car, and designate the car.’ He said, ‘It is dark, and the boys could not tell the car.’ I asked him how far it -was to where they would water the hogs. He said, ‘It will be very soon; we will get there in a very few minutes.’ At that time the whistle blew for a station, and he said, ‘That is the water station; now get off of the car and go forward and designate the car that is to be watered.’ About that time he walked out of the car, and I walked out as soon as he said that to me.” He testified that he stepped down off the steps, supposing that he was stepping on the ground; that with one foot he stepped on something solid, and then fell headforemost on the ground below.
On cross-examination, the plaintiff was asked with reference to statements he had made in a deposition taken before John H. Fazel, a notary public at Winfield. Some of the statements contained in' the deposition he denied having made. He admitted that a deposition had been taken, and that the signature to it was his, but claimed that it was taken down in shorthand by the stenographer and written out afterwards, and that it was not correctly written. The defendant offered
“ Ques. Did he say anything to you about getting off of the train at that point? Ans. He told me to go forward.
“Q. I did not ask you that; answer my question. Did he ever tell you to get off the train and go forward ? A. He never told me how to go forward; did not tell me get off, or how.
“Q. Where was he when the train stopped? A. I cannot tell you.
“Q. Where was he when the train whistled? A. I can’t tell you.
“Q. I thought you said that he simply told you to go forward and designate the car. A. Well,-
“Q. Did he at that time tell you to get off of the car? A. 1 did not know that he did, now.
“Q. If he had told you to get off, you would have remembered it, would you not? A. I think so.
“ Q. He merely told you to go forward and show the boys the car, did he? A. Yes, sir.
“Q. That is all he said about that, is it? A. That is all he said about getting off the qar. He told me to designate the car the hogs were in, and they would stop and water them at the next station.”
In support of this ruling of the court, counsel for defendant in error advances the following propositions:
“(1) That the deposition was not admitted to have been correctly written down, but was testified by plaintiff ou the trial to having been incorrectly written down. (2) That it was not filed one day before trial. (3) That the deposition was not offered as a whole. (4) That the witness Painter was present in court and testified, and being so present, his deposition was not admissible. (5) That every of the portions*418 offered did not contradict the testimony of Painter, and the deposition as a whole, taken together, was corroborative of Painter’s testimony on the trial.”
As the errors above noticed require a reversal of the case, we do not deem it necessary to comment specially on the instructions, which are faulty in some particulars. Nor do we deem it necessary to lay down any rules for the guidauce of the court on a retrial of the case, as the questions involved are not complicated, and the law applicable has been well settled by former adjudications of this court.
The judgment is reversed, and a new trial ordered.