Telle v. Leavenworth Rapid Transit Railway Co., 50 Kan. 455

Telle v. Leavenworth Rapid Transit Railway Co.

50 Kan. 455 | Kan. | 1893

The opinion of the court was delivered by

Horton, C. J.:

The question in this case is, whether the plaintiff upon his proof was entitled to go to the jury upon the question of the defendant’s negligence. It is contended that the railway company was guilty of negligence in not keeping its track clear of obstructions, and that the engineer in charge of the street motor or “dummy” negligently failed to discharge his duty in not keeping a proper lookout for obstructions upon or near the track. It has been frequently decided by this court that a railway company is bound to exercise reasonable and ordinary care in providing suitable machinery, instruments, means and appliances for the work of its servants and employés. (Railroad Co. v. Holt, 29 Kas. 149; Railroad Co. v. Fox, 31 id. 586; Railroad Co. v. Moore, 31 id. 197; Railroad Co. v. Wagner, 33 id. 660; Railway Co. v. Weaver, 35 id. 412; Railway Co. v. Dwyer, 36 id. 58.) If the accident in this case had resulted from a coal car owned or operated by the defendant, or from any defect in the construction or maintenance of the track upon which its trains were operated, and if the petition had charged that the railway company had failed to exercise reasonable care and diligence to provide Telle, the injured employé, with a reasonably safe track or place at which to work, it is probable that sufficient proof was offered to establish prima facie actionable negligence. (2 Thomp. Neg. [ed. 1880], 985-987; Blanton v. Dold, 18 S. W. [Mo. 1892] 1149; Mooney v. Lumber Co., 28 N. E. Rep. [Mass. 1891] 352; Donahue v. Drown, 27 id. [Mass. 1891] 675; Griffin v. B. & A. R. Co., 19 id. 166; Kelley v. Bridge Works, 17 Kas. 558; Jackson v. Railroad Co., 31 id. *462761; Railroad Co. v. Ledbetter, 34 id. 334.) But this is not the case which is before us for consideration.

The allegation in the petition that the coal car on the spur or siding “moved towards the junction of the main track on account of the negligence and carelessness of the defendant, its agents or servants, in leaving the car without the brakes being securely set or secured,” was not sustained by any proof whatever. On the other hand, it affirmatively appeared that the motor or “ dummy,” with two cars attached, ran from the glucose works south to the soldiers’ home, about 2-J miles, over a single track owned by the Kansas City, Wyandotte* and Northwestern Railroad Company; that the spur or siding upon which the coal car was standing which collided with the motor or “dummy” was not owned or under the control or charge of the defendant. It was not placed upon the spur or siding by the defendant, and neither the defendant nor any of its agents or servants had anything to do with the side tracks or the location of the coal car. The petition specifically alleged that —

“The engineer in charge of the engine, and the conductor in charge of the train, negligently failed to keep a lookout to see if the track was clear and free from obstructions at said place, by reason of which they ran the engine into and collided with the coal car so standing on the spur or siding; that plaintiff was injured in consequence of the negligence of defendant and its engineer and conductor, in not keeping a lookout so as to see that the track was clear and free from obstructions; that if such lookout had been made, and the engineer and conductor had been looking out, as they were in duty bound to do, they would have seen the coal car, and could have avoided any collision with the same.”

The proof showed that the coal car stood upon a parallel side track, about four feet from the main track, for quite a long time. Five times the train upon which Telle was the fireman passed this coal car in safety, Telle sitting on the same side of the “dummy” or engine. The coal car was seen *463in the same position 15 or 20 minutes prior to the accident. When the “dummy” and train were about to pass the coal car for the sixth time, from some cause not explained, it had moved a few feet upon the spur or siding, so that it struck the-“dummy,” and injured Telle. The proof showed that the engineer could have stopped the train within 150 feet of the point of collision, but there was no proof offered showing or tending to show that the coal car had reached the point at which the collision took place when the “dummy” and train were 150 feet or more distant-. Eor aught that appears, the coal car may have moved down to the danger point after the train was less than 150 feet from it. Herley, the brakeman, who was standing on the rear step of the train on the west side, being the same side that the coal car stood ou, testified as follows:

“Ques. Where were you situated just before this collisiou? Ans. I was on the hind end of the two cars.

“Q,. What did you observe, and what did you do? A. Well, about the time the engine struck the car I was down on the steps of the car, and I looked ahead to see how the switch was, and I saw they were going to strike, and jumped off.

“Q,. You were on the hind coach, were you? A. Yes, sir.

“ Q. And you could see from the platform at the end of the coach that the engine was going to strike the coal car? A. Yes, sir.

“Q,. And then you jumped? A. Yes, sir.

“Q,. Now, as I understand your statement, Mr. Herley, it is this: That just at the time the cars were about to strike, just at that instant you happened to glance out and thought there was not room to pass, and you jumped off? A. Yes, sir.

“Q. From the time you saw it, did you not have time to do anything else? A.' That is all I had; I was down on the last step, and I had to get off.

“Q,. Hid you know how fast the car was running? A. The train we were on?

“Q,. Yes. A. Well, I suppose from 12 to 15 miles an hour; I do n’t know exactly how fast we were running.

*464“Q,. By looking, could you tell about how far back it would strike? A. No, sir; I couldn’t; the engine struck it just before I got off.”

2. Actionable negligence-evidence to support. Telle testified that the engineer “could have stopped the train within 150 feet.” The presumption is that the master has discharged his duty to the employé. (Railway Co. v. Millihen, 8 Kas. 647; Railway Co. v. Young, 8 id. 658; Railway Co. v. Salmon, 11 id. 83; Jaokson v. Railroad Co., 31 id. 761; Wood, Mast. & Serv. 368-382.) The petition charged negligence upon the engineer and conductor. They were not negligent unless they saw or could have seen the coal car in time to have stopped the train before the collision; therefore, unless proof was offered that the coal car wag landing at the point of collision, or could have been seen moving towards that point, within 150 feet therefrom, there would be no negligence in not stopping the train. This case, upon the pleadings and evidence, is very much as if a tree or a rock had suddenly fallen upon or near the track just before the train reached the place of accident. Negligence in such.a case could hardly be predicated upon the mere fact that an obstruction was upon the track undiscovered. The proof should go farther, and show, not only that the obstruction was upon the track at the time of the collision, but also upon or near the track long enough for the engineer to have seen the same and stopped the train. There was no proof when that coal car reached that dangerous position. As it was 15 or 20 minutes before in a safe position, it is as consistent to say that it moved to the place of danger just before the collision as to say that it moved there several minutes prior. Since the train could not have been stopped in less than 150 feet, it is manifest that if the coal car moved into the place of danger when the engine was within that distance, the engineer by no kind of a lookout could have discovered the danger in time to have avoided the injury. If iu fact the coal car moved so slowly down that it could have been seen by the engineer within 150 feet before reaching the point of collision, that should have been shown. As crowds *465of people lined the track watching the movements of the train, it being the first day of its operation on the road, there ought to have been no trouble in showing by some witness when the coal car reached the danger point, or whether it moved slowly down, and therefore could or ought to have been seen by the engineer in time to have prevented the collision. (Kelley v. Railroad Co., 75 Mo. 138; Moody v. Railroad, Co., 68 id. 470; Toner v. Railway Co., 69 Wis. 188; Murray v. Railroad Co., 11 Colo. 124; Carter v. Railway Co., 65 Iowa, 287; Railway Co. v. Haley, 25 Kas. 35.)

1. Personal injuris-action-pleading and proof. Of course, where a party charges a specific act of negligence, is concluded thereby and cannot recover upon matters not alleged. (Railroad Co. v. Irwin, 35 Kas. 286; Denton v. Railroad Co., 52 Iowa, 161; Carter v. Railway Co., supra; Price v. Railway Co., 72 Mo. 414.)

The judgment of the district court will be affirmed.

All the Justices concurring.