16 P. 131 (Kan. 1887), Union Pac. Ry. Co. v. Estes

Citation:16 P. 131, 37 Kan. 715
Opinion Judge:SIMPSON, C.:
Party Name:THE UNION PACIFIC RAILWAY COMPANY v. WILLIAM H. ESTES
Attorney:J. P. Usher, A. L. Williams, and Chas. Monroe, for plaintiff in error. John A. Hale, and J. O. Fife, for defendant in error.
Judge Panel:SIMPSON, C. All the Justices concurring.
Case Date:December 10, 1887
Court:Supreme Court of Kansas

Page 131

16 P. 131 (Kan. 1887)

37 Kan. 715

THE UNION PACIFIC RAILWAY COMPANY

v.

WILLIAM H. ESTES

Supreme Court of Kansas

December 10, 1887

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Error from Wyandotte District Court.

THIS case was tried by a jury, at the December Term, 1886, of the district court of Wyandotte county. The material facts are stated in the opinion and in the special' findings of the jury. The plaintiff asked the court to instruct the jury as follows:

"1. It was the duty of the defendant company to provide and furnish its employes, among whom was this plaintiff, with a suitable and safe road, engines, cars, and appliances for conducting the business, and to select competent and reliable servants to use and operate the same; and the defendant is liable for injury occurring to an employe in the operation of said railroad caused by defective machinery or appliances upon any of its engines or cars, when such defects could have been discovered and remedied by the exercise of reasonable and ordinary care and diligence upon the part of defendant.

"2. It was the duty of the plaintiff in the discharge of his duties to exercise reasonable and ordinary care to avoid injury, and a failure upon the part of the plaintiff to exercise such care would bar the right of recovery; and the jury in arriving at their determination as to what constitutes such reasonable and ordinary care may take into consideration the age and experience, or want of experience, of the plaintiff, the kind of labor he was performing, the orders he was under, if any, and any and all other facts and circumstances surrounding plaintiff at the time of the accident.

"3. If the jury believe from the evidence that there was any defect in the engine of the defendant or appliances thereof, either in construction or from injury received thereto, and that such defect had existed for a considerable time prior to the accident, and that such defect could have been discovered by ordinary care and diligence, then no actual notice of such defects upon the part of defendant is necessary to charge defendant with liability for injury caused by such defect.

"4. It is not necessary for the plaintiff, in the first instance, to prove that he was not guilty of negligence contributing to the injury, and the defendant company is not excused by any negligence of the plaintiff which does not amount to a want of ordinary care on the part of the plaintiff in avoiding the consequences of the defendant's negligence."

The court gave the foregoing instructions to the jury, and the defendant duly excepted.

The defendant requested the court to give the following instructions to the jury. Instructions 5, 6, 8, 9, 10 and 11 are in the opinion:

"12. If foot-boards were provided on the engine to enable those who did the switching to get upon the engine, and to ride upon, and plaintiff knew what the foot-boards were provided for, and those foot-boards were in good condition and could have safely been used, the plaintiff cannot complain even if the jury shall find that the step upon which plaintiff was injured was defective.

"13. Even if the jury shall find that the step upon which plaintiff alleges he was injured was out of order, the defendant was not at fault on that account unless the plaintiff proves that it (the defendant), or its foreman or agent who had charge of the locomotive, knew that the step was out of order, or that it had been out of order so long that the defendant, or its agent in charge of such engine, ought, by the exercise of reasonable diligence, to have known that the step was out of order; nor then if the jury find that the foot-boards were there for him to ride upon, and that he could have got upon the rear foot-boards without exposing himself to danger."

"15. If the step of which plaintiff complains was adjusted so as to be convenient for and in the position desired by the engineer who ran the engine, and the plaintiff had no duty to perform upon the cab of the engine while in motion that required him to use said step, he cannot complain of the position or adjustment of said step, nor recover for any injury he may have received because of the adjustment of said step."

"17. The defendant is not required to have any particular kind of a step on its locomotive, (but must provide a reasonable step.) [Words in parenthesis being added by the court.]

"And it is no ground for recovery in this action if you find that the kind of step complained of in this action was not as safe a kind as others in use upon locomotives." [Words in italics being stricken out by the court. Given as modified, and excepted to by plaintiff and defendant.]

"18. In every contract of hiring there is an implied contract that the servant is competent and fit to discharge the duties of the service for which he is employed, and that he will faithfully, honestly, and properly discharge those duties. [Given.]

"19. In taking service as a helper to the hostler, the plaintiff assumed the risk of ordinary danger incident to the position he occupied, and if the duties of the position required him to get upon the engine in motion, he assumed the risk of the ordinary dangers attending the getting on engines in motion. [Given.]

"20. If the plaintiff's duties required him to get upon engines in motion, in doing so he was required and bound to use such care as was commensurate with that practice, and if he was negligent at the time of his injury in attempting to get upon the engine in motion, (and such negligence materially contributed to the accident,) he cannot recover in this action. [Words in parenthesis being added by the court. Given as modified, and excepted to by plaintiff and defendant.]

"21. In getting upon the engine in motion the plaintiff was bound to use his eyes and look and see where he was to step, and if he did not look, and was injured by reason of any defect in the step, (which he might have discovered by looking,) he cannot recover for any injuries he received on account of any such defect." [Given as modified, and excepted to by plaintiff and defendant.]

"23. If the jury believe from the evidence that the defendant company had placed upon the front end of the locomotive in question, and upon the rear end of the tender, foot-boards and hand-rails running clear across the same, upon which foot-boards the helper and switchmen were to ride while the engine was in motion, and that the plaintiff could get upon one or the other of said foot-boards without exposing himself to any danger, and that the plaintiff had ridden upon such foot-boards on this or any other engine, and knew the object and purpose of such foot-boards, it was his duty to have used them, and not risked the hazard incurred by attempting to get upon the step of the cab of the locomotive. (If it was dangerous to do so.) [Words in parenthesis being added by the court. Given as modified, and excepted to by plaintiff and defendant.]

"24. If the jury believe from the evidence that the locomotive was in motion when the plaintiff attempted to get upon it by the step in question, (and that it was dangerous to make such attempt,) and that he could have safely got upon it if he had waited for the rear foot-board, it was his fault in attempting to get upon the locomotive by the step; it was his duty to have waited till the rear foot-board came to him." [Words in parenthesis being added by the court. Given as modified, and excepted to by both plaintiff and defendant.]

The court instructed the jury as follows:

"1. The burden is on the plaintiff to establish his right to recover damages from the defendant in this action by a preponderance of the evidence.

"2. By a preponderance of the evidence is not necessarily meant the greatest number of witnesses, but that evidence which, after a consideration of the entire evidence, is, in the judgment of the jurors, entitled to the greatest weight.

"3. The jury are the sole and exclusive judges of the weight of the evidence and the credibility of the witnesses; if the jury believe that any witness has willfully and corruptly testified falsely concerning any material fact, they may disregard the whole or any portion of the evidence of such witness. There is no inflexible rule requiring the jury to believe or disbelieve the whole or any particular portion of the evidence of any witness.

"4. In considering the evidence the jury can consider the manner of each witness while testifying herein; the apparent candor or want of candor, as the case may be, of each witness; his apparent bias and prejudice, if any, or freedom from bias or prejudice, as the case may be; the intelligence of the witness, his apparent recollection and means of information concerning the matters about which he testifies, and all other matters which will assist the jury in arriving at a correct conclusion concerning any disputed point in the evidence.

"5. An employe of a railroad company by virtue of his employment assumes all the ordinary and usual risks and hazards incident to his employment.

"6. As between a railroad company and its employes, the railroad company is required to exercise reasonable and ordinary care and diligence, and only such, in furnishing to its employes reasonably safe machinery and instrumentalities for the operation of its railroad.

"7. It will be presumed, in the absence of anything to the contrary, that the railroad company performs its duties in such cases, and the burden of proving otherwise will rest upon the party asserting that the railroad company had not performed its duty.

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