25 Kan. 1 | Kan. | 1881
The opinion of the court was delivered by
This was an action to recover damages for injuries which the defendant in error, William C. Thomason, alleges that he suffered by reason of the negligence of the employés of the Union Trust Company, operating and controlling the Missouri, Kansas & Texas railway. In substance, the case of the plaintiff below was this: His evidence conduced to show that he was in the employment of the Trust Company, as a trackman, whose principal duty consisted in repairing the track of the company’s railway. He with several others formed a squad, which worked under the directions and orders of a foreman, named Owen Buckley, called a “section boss.” Their station or headquarters was at Skiddy, and they were appointed to keep in repair several miles of track leading from their station. To facilitate their work, and enable them to rapidly transport themselves and tools from one portion of the track to another, the company furnished them, as a part of their equipment, a hand-car, which was operated by the men upon the railway track. A place was appointed at Skiddy in which, when they were not in use, the tools and hand-car were safely kept. At the close of the day’s labor
“ Every railroad company organized or doing business in this state shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other
The provisions of this act are substantially the same as those of the Iowa statute of 1862, and as the supreme court of that state had judicially construed the statute to apply to those engaged only in the hazardous business of operating railroads, before its adoption in this state, this construction follows it here. Under the instructions of the court, the jury found that Thomason was embraced within the provisions of the statute, and returned a verdict of $2,000 damages.
Objections are taken by the company to the instructions — First, on the ground that the accident occurred after quitting-time, after the day’s work was done, and so late that all the men would then have been at home had they started promptly after their work was over; and second, as the employment of Thomason was that of a laborer in repairing the railroad track, the statute of 1874, within the Iowa decisions, does not apply to the case.
The first objection is fully answered by the evidence. The foreman, Buckley, testified that the delay in returning to Skiddy was owing to the men being compelled- to wait for the hand-car to be returned from going to the construction gang, where he had permitted it to be taken by some parties. He also testified that Thomason “ was under his orders at the time of the accident.” Thomason testified : “After they quit work on the track, his duty was to put the tools on the hand-car, transport them to the station [Skiddy], put them into the tool box and put the hand-car on the side-track; that at the time he quit work on the track on the day of the accident, his' foreman gave him orders to put the tools on a hand-car; that he said to the foreman there was no room on the front car, and was -told to put the tools on and get on wherever he could.” This, with the other evidence, clearly shows that his duties had not ceased at the time of the accident; that he rode on the hand-car, under orders, as an -employé of the company, because he was an employé, where other servants and employés rode.
Again, in Schroeder v. Chieago &c. Rld. Co., 47 Iowa, 375, a person employed by a railway company at the work of taking down and removing a bridge, who was compelled by orders of his superior to go upon one of the company’s trains, and while so doing was injured, was engaged in operating the road within the statute, and was entitled to damages.
In Lombard v. C. R. I. & P. Rld. Co., 47 Iowa, 494, the plaintiff was employed by the defendant in repairing its roadbed. At the time of the accident he was assisting in running a hand-car, and with other employes was returning to dinner. They occupied, as in this case, three hand-cars; the plaintiff
In the late case of Pyne v. Chicago &c. Rld. Co., 11 Cent. L. J. 55, a detective in the employ of a railroad company, and an engineer operating an engine on the road, are held to be fellow-servants or coemployés. It was further held in the case, that the detective was within the statute, under the following circumstances: He was employed by the railway company to apprehend certain parties, and was directed to walk along the track of the road to a house by the roadside. As he was walking along on the track, in obedience to his instructions, he was, from sunstroke or some other cause, prostrated upon the track in an insensible condition, and while in that condition he was injured by the engineer of a passing train negligently running the train upon him. In the opinion the court says: “The statute does not embrace those only who are engaged in the operation of a railroad in running trains. Trackmen, switchmen, and others, whose duty requires them to be upon the track, are more or less exposed to the hazards of the business of railroading, and such employés, when injured by the use or operation of the road, and by the negligence of coemployés, are as plainly within the provisions of the statute as those whose duty requires them to assist in the running of trains. The proper test in determining the question is, does the duty of the employé require him to perform service which exposes him to hazard peculiar to the business of using and operating a railroad ? If it does, and if, while in the line of his duty, he, by the negligence of a coemployé, receives an injury from a passing train, or from other appliances used in the use and operation of the road, he may recover.”
Some of these decisions are under the provisions of the Iowa statute of 1873, but as that act simply conforms to the stat
Upon an examination of all the instructions, we are clearly satisfied that the plaintiff in error was not prejudiced. Several of the instructions are erroneous, and unfavorable to the defendant in error. He has more reason to complain than the plaintiff in error; but as he seems satisfied with the final result of the action, we cannot interfere in his behalf.
The judgment of the district court will be affirmed.