35 Kan. 700 | Kan. | 1886
The opinion of the court was delivered by
This case has once before been in this court. (U. P. Rly. Co. v. Fray, 31 Kas. 739; same case, 15 Am. & Eng. Rld. Cases, 158.) After the former decision, the case was returned to the district court, where it was again tried before the court and a jury, and the jury found a general verdict in' favor of Fray, who was the plaintiff below, and against the railroad company, which was the defendant below, and assessed the damages at $4,000, and ¿Iso made several special findings of fact; and upon this general' verdict and these special findings of fact the district court rendered judgment in favor of Fray and against the railroad company for the amount of the general verdict and costs, and the railroad company,' as plaintiff in error, again brings the case to this court and again seeks a reversal of the judgment of the court below.
The evidence introduced on the second trial is very similar to that introduced on the first trial. There are some differences, however, which we may mention as we proceed with this opinion.
The foundation of the plaintiff’s action is the alleged negligence of the defendant railroad company in failing to provide and maintain a safe and sufficient derrick, with sufficient ropes and other appliances, for the safe handling of stone in building a culvert for the defendant on its line of railroad in Wyandotte county, Kansas, at a point known as “Deep Hollow
It is next claimed that the court below erred in refusing to give certain instructions and in giving certain other instructions. We think the court below did so err. We shall now assume that Ulrich and Nelson were guilty of negligence for
But although the defendant concedes that both duties could not have been performed precisely at the same time, yet it claims that the plaintiff could have easily performed both duties by first attending to one, and then to the other, alternately; that is, he could have first wet the brake-rope, and then attended to the other duty, and then wet the brake-rope again, and so on, without any difficulty. The defendant claims that even after the employés had commenced to move a stone for the purpose of letting it down to the place where it was to be put in the culvert, the plaintiff could have stepped to the
“20. . . . But if the jury further find and believe from the evidence that after said order [to keep the brake-rope wet] was given by- said Mallison to said plaintiff, that one Ulrich became foreman, with authority to superintend and direct work for defendant, and that said Ulrich had assigned other duties to the plaintiff, and at the time of the alleged injury occasioned by the breaking of the said brake-rope, and prior to and at the time of said alleged injury, the plaintiff, in obedience to orders of Ulrich, was in the discharge of other duties than wetting said rope, he was bound to discharge such other duties, (if the jury find he was assigned to other duties); and if it appears the plaintiff received the alleged injuries in the discharge of such other duties under the direction of the foreman, then the defendant would properly be charged with negligence.”
“24. If the jury believe from the evidence that Samuel Mallison was superintendent of the work, and William Ulrich was overseer or foreman of the work, and that John Nelson and the plaintiff were laborers handling the derrick when the accident occurred, and if the jury further find and believe that William Ulrich, overseer, prior to the time of said accident, assigned and directed plaintiff the work and duty of giving signals to other workmen while lowering rock from the derrick platform into the pit below, and if the jury further find that at the time the accident occurred the plaintiff, in. obedience to previous directions given by the overseer, was at his proper place ready and waiting to give the required signals, or in the act of giving such signals, then plaintiff was in the line of his duty under the orders of the overseer of the work at the time of the accident.”
*707 “28. If the jury find and believe from the evidence that plaintiff was charged by both Mallison and Ulrich with keep-. ing the brake-rope wet while lowering rocks, and also charged by Ulrich to give signals to the workmen in lowering the rocks, and if the jury further find and believe that neither of these orders was revoked when the accident happened, then the jury will consider whether the plaintiff at the time of the accident was occupied in giving signals or pouring water on the rope, and they will further fin'd and consider whether he could perform both duties at the same time. And if the jury find that both duties could not be' performed at one and the same time, and if they believe that both could not be performed at the same time, then the jury will find from the evidence to which of these duties he was assigned at and immediately prior to the accident that caused the injury, and if the jury find and believe that at that time he was assigned to and directed to pour water on the rope, and the rope broke, and he was injured on account of his failure to keep the rope wet, then and in that ease the plaintiff is not entitled to. recover; but if the jury find and believe that at the time of the accident the plaintiff' was engaged in giving signals or other duties pertaining to the giving of such signals, and m the line of his duty pertaining to such orders, then he could not be charged with negligence in failing to pour water on the brake-rape in lowering the rock.”
“Ques. %: Was the plaintiff instructed by Mallison, acting for the defendant, that there was danger of the brake-rope burning, in letting the rock down into place, if the rope was not kept wet? Ans.: Don’t know.”
“ Q,. 5. If the brake-rope had been kept wet where it wound around the shaft, and the friction occurred, would it have burned? A. Don’t know.
“ Q,. 6. Did the plaintiff" observe and obey the directions of Samuel Mallison in respect to keeping the rope wet? A. Don’t know.
“ Q,. 7. Was not the plaintiff repeatedly warned by Samuel Mallison and William Ulrich, the foreman upon the work, to be careful to attend and see that the brake-rope was kept wet while rock was being lowered by the derrick to the work below? A. Don’t know.” ■.
*709 “Q,. 9. Would the brake-rope have burned if it had been kept wet as directed by Mallison? A. Don’t kuow.
“Q,. 10. Did anyone for the defendant direct the plaintiff not to observe the directions given him by Mallison in respect to keeping the rope wet? If so, name the person, and state what was said. A. Don’t know.
“Q. 11. Was not the plaintiff provided with a bucket for the water which he was to use in wetting the brake-rope, and a proper vessel for applying water to the rope? and was not water flowing near by, which the plaintiff could get to wet the rope? A. Don’t know, as to the first paragraph; yes, as to the second.
“Q,. 12. Was not the brake-rope put on new the day of the accident or the day before, and was it not of size and strength sufficient for the purpose of controlling the lowering of the rock by the derrick, and was not the only thing needed to make it safe to keep it wet as directed by Mallison? A. Don’t know.”
The judgment of the court below will be reversed, and the cause remanded for a new trial.