22 Kan. 117 | Kan. | 1879
The opinion of the court was delivered by
Where a railroad company is sued by one of its employés for injuries received by him while in the-service of the company, and on the trial of the case no negligence is shown to have existed on the part of either the railroad company or any of its employés other than the plaintiff, we would think that the plaintiff could not recover, and that the court might rightfully and properly sustain a demurrer interposed by the defendant to the plaintiff’s evidence, and that the court might then rightfully and properly render judgment in favor of defendant and against the plaintiff for costs; and if we are right in this, the judgment of the court below must be affirmed. The facts of the case are substantially as follows:
On July 9, 1877, the plaintiff was employed by the defendant (the Atchison, Topeka & Santa Fé Railroad Company) as a common laborer in loading stones upon flat cars and in pushing these cars by hand upon a side-track of the defendant’s railroad. In the performance of this labor, it was necessary to pass over an embankment about fifteen or twenty feet high, and across a bridge twenty or twenty-five feet high, A recent rain had caused the ground to be slippery, and had washed out a small place in the side of the embankment next to the bridge, about three or four feet in width. The plaintiff, together with about fourteen or fifteen co-laborers, had
On the trial he proved the foregoing facts. The court then sustained a demurrer to the evidence, and rendered judgment against the plaintiff and in favor of the defendant for costs; and such judgment must be affirmed.