35 Kan. 412 | Kan. | 1886
Lead Opinion
The opinion of the court was delivered by This was an action brought in the district court of Harvey county, by John W. Weaver against the St. *420 Louis San Francisco Railway Company, to recover for personal injuries alleged to have been caused by the negligence of the defendant and its employés. A trial was had before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant, and assessed the damages at ten thousand dollars, and also made sixty-seven special findings of fact; and upon this general verdict and these special findings of fact, the court below rendered judgment in favor of the plaintiff and against the defendant and for the amount of the verdict, with costs. To reverse this judgment the defendant brings the case to this court.
Statement of facts
The alleged injuries occurred on May 19, 1883, at about 3 o'clock in the morning, at a point on the defendant's railway where the same crosses Vernon valley, about four miles north statement of of Fayetteville, Washington county, Arkansas. facts. The plaintiff at the time was a locomotive engineer in the employment of the defendant, and had charge of an engine drawing one of defendant's freight trains from Van Buren, Arkansas, northeasterly, to Rogers, in the same state. J. Workman was the fireman on the same train. James Dun was the defendant's chief civil engineer, and had the general charge of the construction and repairs of the defendant's railway. J. F. Hinckley was an assistant civil engineer under Dun. Samuel Lyman was the defendant's general road master, John R. Ward was the division road master for that division, and Charles Downing was the section foreman for that section, which includes the place where the accident and the alleged injuries occurred. The injuries were caused by the engine's running into a "wash-out" at the southeast side of Vernon valley, about 900 feet south of where the railway crosses the main channel of Vernon creek or Vernon branch. At the main channel of Vernon branch, a pile trestle, sixty feet wide and six feet high, was constructed for the water to pass through. At the place where the accident occurred, a wooden box culvert, six feet wide and four or five feet high, was constructed for the purpose of draining some low ground, and possibly also of carrying off a portion of the water that might *421 flow down Vernon valley during times of high water. The water at this place flowed from the east to the west, though the general course of the stream was from northeasterly to southwesterly, and except during times of wet weather no water passed through this culvert, but all passed through the pile trestle. At the time of the accident, a large volume of water was flowing down Vernon valley, and the high water of that night had washed out the culvert. The plaintiff's engine ran into the place where the culvert had been washed out, turned to the left, and turned over on its side; and while it was turning the plaintiff jumped from the cab window, on the upper side, and into a swift current of water. This current carried him back to the engine, which was still in motion, and his left arm was caught between the driving-rods of the engine, and was so crushed as to require amputation above his elbow and near the shoulder; and this injury and the incidental and consequent injuries, are the injuries of which the plaintiff now complains.The first question involved in this case is, whether the court below had jurisdiction to try the case, or not. The plaintiff in error, defendant below, claims that the case was removed from the state district court to the United States circuit court. It appears that the defendant was at the time of the accident, and still is, a corporation organized under the laws of the state of Missouri, but besides doing business in the state of Missouri, it then did and still does business in both the states of Arkansas and Kansas. The plaintiff at the time of the accident was a resident of Arkansas. Afterward, and before commencing this action, he removed to and became a resident of the state of Missouri, and while a resident of the last-mentioned state he commenced this action in Kansas. He is still a resident of the state of Missouri. He commenced this action on December 17, 1883. On January 4, 1884, the defendant filed a general demurrer to the plaintiff's petition, upon the alleged ground that the petition did not "state facts sufficient to entitle the plaintiff to maintain his said action against the said defendant." On February 4, 1884, the demurrer *422 was overruled. Afterward the defendant filed an answer, and also an amended answer, and the plaintiff replied thereto. Afterward, and on May 20, 1884, the defendant filed its petition and bond for a removal of the case to the circuit court of the United States; and afterward, and on October 13, 1884, filed its plea in abatement, claiming that the case had already been removed to the circuit court of the United States. Both the application for the removal and the plea in abatement were overruled.
1. No removal of case to federal court, when.
Now, passing over all other questions with regard to removal, we think the defendant made its application for removal too late. It has been decided by the supreme court of the United States, in at least three cases, that a case cannot be removed from a state court to the federal courts under the act of congress of March 3, 1875, after a hearing has been had in the state court on a demurrer to the complaint because it did not state facts sufficient to constitute a cause of action. (Alley v.Nott,The next question is really one of fact: was the plaintiff guilty of contributory negligence? The distance from Van Buren to the place where the accident occurred is 61 miles, and to Rogers, 77 miles. When the plaintiff's train left Van Buren, which was on May 18, 1883, at 7:30 o'clock in the evening, it was raining slightly. When the train reached West Fork, a distance of about 45 miles from Van Buren and 16 miles south of where the accident occurred, evidences were observed which indicated that a great storm had crossed the track. At Fayetteville, four miles south of where the accident occurred, there were still evidences of rain, but no evidence of any great storm. When the train crossed Clear creek, something over half a mile from where the accident occurred, it was noticed that the stream was unusually high; but from Clear creek to the place where the accident occurred the grade is ascending, and there was very little if anything to indicate danger until the train had approached very near to Vernon valley, where the accident occurred, and nothing to conclusively *423 show danger until the engine commenced to turn to the left and to turn over, as aforesaid. This was all in the night-time, about 3 o'clock in the morning. In Vernon valley, where the railway crosses Vernou branch, or Vernon creek, there is a pile trestle about sixty feet wide and six feet high, for the water of Vernon branch to run through; and this trestle is about 900 feet north from the culvert, or sluiceway, as it was sometimes called, where the accident occurred.
2. Contributory negligence: finding, sustained.
The bed of Vernon creek is also a few feet higher than the bottom of this culvert or the ground where it was placed. It was not intended that Vernon brauch or any portion of the stream itself should pass through this culvert, but the culvert was really intended to carry off only the water from some low ground adjacent thereto. But in constructing the railway, in putting in the pile trestle where the water of Vernon branch was to run through, and digging a ditch from that point on the east side of the railway to the point where the accident occurred, and throwing up an embankment of solid earth on which to place the railway track, the course of Vernon branch was so changed that during times of high water a large proportion of the water from the branch passed along the east side of the railway to the culvert and ran through the culvert and down a ravine to the main branch. Upon these facts, we cannot say, as a matter of law, that the plaintiff was guilty of culpable contributory negligence. We have not stated the facts in the great detail in which they were proved, but, taking all of them just as they were proved, we cannot say, as a matter of law, that the plaintiff was guilty of any culpable contributory negligence; and therefore the findings of the jury, general and special, that the plaintiff was not guilty of such negligence, must be sustained.3. Burden of proof.
It is claimed, however, that the burden of proof rests upon the plaintiff to show that he was not guilty of contributory negligence, and not upon the defendant to show that he was. The rule, however, in this state, is otherwise. (K. P. Rly. Co. v. Pointer,4. Negligence: finding sustained.
The next general question is, whether it has been shown that the defendant was guilty of negligence. This question is principally one of fact. The principal negligence charged against the defendant in the present case is the failure of the defendant and its employés to put in a sufficient culvert at the place where the accident occurred, to carry off all the water which naturally flowed to it in times of high water, or which was caused to flow to it by reason of the manner in which the railway was constructed at Vernon valley; and also the failure of the defendant and its servants or agents to exercise reasonable diligence to discover the "wash-out" and to give the plaintiff and the other train-men proper warning of the danger before the accident occurred; and the principal agents of the defendant who are charged with negligence are the defendant's chief civil engineer and his assistants, and the section foreman of the section where the accident occurred, and his assistants. We have already stated how the railway track, trestle, embankments, ditches, culverts, etc., were constructed *425 at Vernon valley, so as to cause the principal portion of the water flowing down this valley during times of high water to flow down to this culvert, instead of passing through the pile trestle, through which it was intended that it should pass; and also the dimensions and capacity of the culvert. We would further state that the section foreman resided about three miles south of the place where the accident occurred, and had at the place of his residence assistants, hand-cars, lights, tools, torpedoes, signals, etc., and that he could have gone with a hand-car to the place where the accident occurred in about twenty minutes, and it was his duty to do so, but he did not. Taking all the facts and circumstances of this case together, we cannot say, as a matter of law, that the jury erred in finding as a matter of fact that the defendant was guilty of negligence in the respect aforesaid.7. Common law, when to govern; presumption.
It is claimed, however, by the plaintiff in error, defendant below, that the section foreman was not a representative of the defendant as between the plaintiff and the defendant, but that the plaintiff and the section foreman were coëmployés, mere fellow-servants of the same master, in a common line of employment; and therefore that under the common law, which is admitted to be in force in Arkansas, where the accident occurred, the defendant is not liable to the plaintiff for the negligence of the section foreman. There is nothing in this case, however, to show what the courts or others in Arkansas consider to be the rule of the common law in cases of this kind, and there is a great difference of opinion prevailing in this country upon this subject; hence we must decide this case upon our own views as to what the rule of the common law in such cases is. It may be that our view of what the common law is, differs from that of the supreme court of Arkansas; but as it has not been proved in this case, as a matter of fact, what view the supreme court of Arkansas or the courts of that state take upon this question, it will be necessary, as before stated, for us to follow our own views as to what the common law upon this subject is. *4266. Common law, Judicial notice of.
If it had been proved in the case what view the supreme court of Arkansas has taken with respect to the common law in cases of this kind, we would follow its view; and this we would do even if its views should differ from ours. If within its views the plaintiff has no cause of action, we would also hold that he has no cause of action. We have no disposition to encourage persons who have no cause of action in their own state to come to Kansas and sue in this state with the possible intention of evading the laws of their own state, and because they may possibly believe that under the rules of law as administered in this state they might be allowed to recover, when they could not recover in their own state. Such would not be a proper administration of justice. If it be claimed, however, that we should take judicial notice of the common law of Arkansas, we would answer that we cannot do so. The courts of this state may take judicial notice of the common law of Kansas, and what it would be except for our own statutes or our own written law; and for this purpose our courts may take judicial notice of all the judicial decisions of this country and of all other countries which have adopted the common law of England. (Hunter v. Ferguson,8. Master — when liable, when not.
There are two classes of cases in which the employés of the same master are not such coëmployés that one of such employés may not recover for injuries caused by the negligence of another employé while all are engaged in transacting some portion or portions of the common master's business. The first class is where the negligent employé is one who has the general management of or control over some portion or line of the master's business, *428 and has control over the injured employé and the other employés engaged in that portion or line of business. A good illustration of this class is found in the case of C. M. St. P. Rld. Co. v. Ross,"It [the railroad company] was simply bound, through certain of its employés — the roadmaster and section boss, for instance — to use reasonable and ordinary care and diligence to keep its road in proper condition; and such employé s, with respect to those who operate the road, represent the company, and indeed are the same as the company. In all cases, at common law, a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow-servants to work with him; and when the master has properly discharged these duties, then, at common law, the servant assumes all the risks and hazards incident to *429 or attendant upon the exercise of the particular employment or the performance of the particular work, including those risks and hazards resulting from the possible negligence and carelessness of his fellow-servants and coëmployés. And at common law, whenever the masterdelegates to any officer, servant, agent, or employé, high or low, theperformance of any of the duties above mentioned, which really devolvesupon the master himself, then such officer, servant, agent, or employéstands in the place of the master and becomes a substitute for themaster, a vice-principal, and the master is liable for his acts or hisnegligence to the same extent as though the master himself had performedthe acts or was guilty of the negligence."
5. Section boss and engineer, not co-employes.
In the present case the roadmaster, the division roadmaster and the section foreman and his assistants were in one line of duty, while the train-men were in another and a different line of duty, and each set within its own line of employment represented the master as to the other set; and the members of one set were not the mere fellow-servants with the members of the other set. The principal ground upon which the doctrine has been established that the master is not liable for any negligence that might take place as between mere fellow-servants is, that such fellow-servants work together in the same line of employment, are intimately acquainted with each other, and knowing each other better than the master could possibly know any one of them, they take all risks of negligence on the part of their fellow-servants; that if any servant chooses to work with a known incompetent or negligent fellow-servant, without informing the master, he himself should take all the risks and consequences of his fellow-servant's negligence and incapacity, the master being required only to use reasonable and ordinary care and diligence in the original employment and the subsequent retention of only such servants as are competent and habitually careful. (Dow v. K. P.Rly. Co.,9. Evidence — conversation between civil engineer and roadmaster, no error in admitting.
It is claimed that the court committed error in the conduct of the trial of this case in many particulars. One of the first errors of this kind complained of is, that the court admitted the testimony of J. R. Ward, the division roadmaster, with respect to statements made by James Dun, the defendant's chief civil engineer. These statements were made prior to the time of the occurrence of the accident, and were made while Ward was the division roadmaster for that division of the defendant's railway, and while Dun was the defendant's chief civil engineer. The statements of Dun were brought about in the following manner: Dun asked Ward if the heavy rains at any time had given Ward any trouble at the place where the accident occurred, and Ward told him that they had never had any trouble there; and Ward then made the statements complained of. The testimony of Ward showing this, reads as follows: "He [Dun] asked me the question if the heavy rains at any time had given me any trouble there." "I told him we had never had any trouble there with high water. He said that he had been uneasy about that place; that he had been detained there by high water when locating the road." At the time when this conversation occurred between Dun and Ward, it was the duty of Dun to see that the railway was properly constructed, and it was the duty of Ward to see that that division of the railway was in proper condition and repair; and this conversation was really a consultation, a conference concerning matters within the line of their duty, the conversation itself was within the line *431 of their duty, and the declaration of Dun formed a part of the consultation, a part of the res gestœ. The purpose of introducing this evidence was to show that the railway company had notice of the character and condition of its railway and of the danger at the place where the accident subsequently occurred; and as it was the duty of the chief engineer and the division roadmaster to see that the road was safe and in proper condition, notice to them was notice to the defendant. Authorities showing that the declarations of agents, not made while in the performance of the agent's duty nor forming any part of the res gestœ, have no application to this case. The following cases we think have application to this case: Brehm v. C. W. Rly. Co., 34 Barb. 257, 275; B. O. Rld. Co. v. State of Maryland, 19 Am. Eng. Rld. Cases, 83; L.N. A. C. Rly. Co. v. Henley,10. Impeachment of party's own witness.
It is further claimed by the defendant below, plaintiff in error, that the court below erred in permitting the plaintiff below to impeach one of his own witnesses. It is possible that the court below committed a slight error in this respect, but still a matter of this kind is so largely within the sound judicial discretion of the trial court, that we cannot say that any reversible error was committed in the present case. There was no attempt to impeach the witness generally, or to impeach his evidence generally, but the only attempt was to show that he had made a statement out of court, and by a letter to the plaintiff, which was different from his testimony upon a particular subject in *432 court. The supposed error arose as follows: D. Workman was the fireman on the plaintiff's engine at the time the accident occurred. The plaintiff introduced him as a witness for the purpose of proving that the train was not moving at the time the accident occurred at a speed greater than from twelve to fourteen miles an hour, but he testified that the train was moving at that time at the rate of from fifteen to eighteen miles an hour. The plaintiff then, for the purpose of impeaching this testimony, introduced a letter from Workman to the plaintiff, in answer to a letter from the plaintiff to Workman, in which first-mentioned letter Workman stated that the train was moving at the time only at the rate of from twelve to fourteen miles an hour. The plaintiff had also taken the deposition of Workman, in which he testified that the train was moving only at the rate of from ten to fourteen miles an hour; but as Workman was present at the trial the plaintiff could not introduce the deposition as original evidence. If the court erred at all, it was in not requiring the plaintiff to show by stronger evidence than he did that the plaintiff was surprised at Workman's testimony. But taking all the testimony together, and the fact that this testimony is of but little importance in the case, we cannot say that the court below so abused its discretion or committed such material error in permitting the plaintiff to impeach his own witness, that the judgment of the court below must be reversed therefor.11. Repairs after accident, as evidence.
The plaintiff in error, defendant below, also claims that the court below committed error in permitting the plaintiff to introduce evidence showing that the defendant, after the culvert was washed out, put in another culvert or bridge of greater dimensions, so as to permit a greater amount of water to pass through. The defendant can hardly claim that this was a material error, for the defendant also proved the same fact. And if error at all, it was a very slight and trifling one under all the facts of the case. But was it error? The making of the passage-way larger than it had formerly been was an admission, slight it may be, and of but little value, but still an *433 admission, on the part of the defendant that the passage-way had previously been too small. And why might not the jury consider such evidence for what it was worth? Many authorities sustain the introduction of this kind of evidence. (St. J. D. C. Rld. Co. v. Chase,It at most only tended to prove by way of admission and as a fact that the culvert was too small, and that the company obtained knowledge of the same, not before, but after the accident. Of course the change of any structure or appliance, to be of any value as evidence, must be made soon after the accident, and seemingly have some connection therewith. This is so held by some of the following authorities, while others of the following authorities hold that the evidence is wholly incompetent underall circumstances; Salters v. D. H. Canal Co., 3 Hun, 338; Payne v.T. B. Rld. Co., 9 id. 526; Baird v. Daly,
12. Railroad company to keep track and roadway safe.
We do not think that the court below committed material error, or any error, in refusing to permit evidence to be introduced with regard to the speed-register. It was not sufficiently identified, nor was any sufficient preliminary evidence introduced to authorize its introduction. Neither do we think that any of the instructions to the jury were materially erroneous. If we should put the same construction upon some of the instructions given to the jury as the plaintiff in error, defendant below, does, we should have to hold them erroneous. The plaintiff in error claims that by some of the instructions a railway company is required to guarantee the sufficiency, good order and good condition of its track and roadway. Of course such is not the law. The law merely requires that railway companies shall exercise reasonable and ordinary care and diligence to keep their tracks and roadways in a reasonably safe condition.13. Company to make road safe.
(A. T. S. F. Rld. Co. v. Wagner,The judgment of the court below will be affirmed.
Concurrence Opinion
HORTON, C. J.: I place my affirmance of the judgment of the district court, in this case, upon the following grounds:
The petition of Weaver alleges, among other things, that his injury was caused by the carelessness and negligence of the section foreman of the railway company in failing and neglecting to go over the railroad track after a heavy and severe storm which occurred along the road on the night of the 18th of May, 1883, to ascertain whether any damage had been done thereby to the road-bed, and for failing and neglecting to notify Weaver and other employés of the railway company upon the train with Weaver of the wash-out, as it was his duty to do, and which, in the reasonable discharge of his duties, he should have done, and which, if so done, would have prevented the injury inflicted. The evidence shows that Charles Downing was the section foreman in charge of the road-bed where Weaver was injured. He had been in charge *436 of his section from six to nine months. There was a severe rain-storm on the night that Weaver's engine was derailed, some of the witnesses stating that the rainfall was unprecedented. It commenced raining at Downing's section-house about five o'clock in the evening, and rained up to eleven or twelve o'clock — perhaps later. The storm ceased before two o'clock. The injury occurred about three o'clock in the morning. The road-bed where Weaver's engine was derailed was washed out for a great distance. The section-house where Downing, the section foreman stopped, was three or four miles from the wash-out. In the section-house the foreman and two section-men slept, and at this house there was a hand-car, lanterns, torpedoes, signals and tools for inspecting and repairing the track, and implements for giving signals to trains, etc. C. W. Rogers, the general superintendent of the railway company, testified that the general orders of his company in relation to section foremen going over the road were that "they were to precede every passenger train, and in case of heavy or extraordinary storms, to go over the road carefully before any train." Among other rules upon the time-card of the railway company, were the following:
"During the continuance, and after storms of rain, wind, or snow, section foremen will always be required to see that the track is not obstructed by fallen trees, driftwood, brush, stones, etc., and to precede each passenger train run in the night by sending two or three men over their section with their handcars and lights to see that the track is clear, and if necessary, notify trains of any obstruction or defect. This rule will be strictly enforced against section foremen."
"All persons employed upon the road must give timely notice of any obstruction to the passage of trains, by exhibiting a flag, etc., and must notify all passing trains."
The jury found, upon the evidence before them, that Downing had charge of keeping the track in repair where Weaver was injured; that he could have gone from his section-house to the place of the wreck in twenty minutes and discovered the wash-out; that it was his duty, in time of heavy rains, to inspect the road and report to the train-men and officers of *437 the road any defects therein; that he neglected and failed to go over the road during and after the severe storm which prevailed before the engine was derailed, and neglected and failed to give the men on the train notice of the wash-out. If Downing had performed his duty and gone over the road before the arrival of the train drawn by Weaver's engine, he would have had knowledge of the wash-out and could have put out danger signals so as to have stopped the train, and thereby prevented the wreck. The derailment of the engine, the wreck of the train, and the injury to Weaver, were caused by Downing's negligence. He, as the section foreman, did not bear the relation of fellow-servant or mere coëmployé in the same line of employment with Weaver, the engineer. He represented the railway company, and the company is responsible to Weaver for the injuries which, through his negligence, were inflicted upon him. If a section foreman, under the decisions of Arkansas, where Weaver was injured, is regarded as a servant or coemployé in the same employment with the engineer operating an engine, such decisions should have been introduced in evidence, as stated in the above opinion. In the absence of any evidence of such a construction of the common law by the Arkansas courts, this case must be disposed of upon the interpretation given in this state to the rule of the common law. The burden of proof that Weaver was guilty of contributory negligence was upon the railway company. Upon this question, the findings and judgment were against the company. There is evidence to support these findings, and therefore it cannot be said that Weaver was guilty of negligence.
