17 P. 306 (Kan. 1888), Weld v. Missouri Pac. Ry. Co.

Citation:17 P. 306, 39 Kan. 63
Opinion Judge:SIMPSON, C.
Attorney:W. D. Webb, and Jackson & Royse, for plaintiff in error. B. P. Waggener, for defendant in error.
Judge Panel:SIMPSON, C. All the Justices concurring.
Case Date:March 10, 1888
Court:Supreme Court of Kansas

Page 306

17 P. 306 (Kan. 1888)

39 Kan. 63




Supreme Court of Kansas

March 10, 1888

Error from Atchison District Court.

ACTION to recover damages for personal injuries. The plaintiff, John T. Weld, alleged that on October 31, 1880, he was, and for a long time prior thereto had been, in the employment of the defendant railway company for hire and reward as switchman or yardman in defendant's track yard in the city of Atchison; that his duty was to attend the yard engine in switching and making up the express trains of the defendant railway company, which usually left the city of Atchison for the city of St. Louis daily about 3:30 o'clock P M, and that on the day aforesaid he was injured by the carelessness of a coemploye. The petition alleged the injury in the following words:

"That in the doing of such work it was then, and for a long time prior thereto had been, his duty to go upon the yard engine to the 'Y' or switch, where the railroad track operated by the defendant, which is south of Utah avenue in said city of Atchison, connects with the railroad track operated and used by the defendant, running west of Third street in said city, and at a point where such last-named track passes over a bridge which spans White Clay creek, between Third and Fourth streets in said city, and in the performance of such work it was the duty of such person or persons operating such engine to stop the same at or near the west end of such bridge, and to there hold the said engine until plaintiff could cross over said bridge and change or regulate the switch at such 'Y' before mentioned; and that on said 31st day of October, 1880, and while in the discharge of his duty, and under the instructions and directions therefor given to the plaintiff by the servants and agents of the defendant, this plaintiff stepped one foot off from the foot-board of said yard engine, when and where the same was then stopped for the purpose of crossing over a portion of said bridge and changing said switch, when the servant and agent of said defendant then in charge of and operating said engine, and before plaintiff had fully alighted or had time to alight therefrom, and without any signal or notice of the starting of such locomotive, negligently and carelessly started such engine, and this plaintiff, in stepping down from such engine, stepped upon said bridge, and by reason of the careless and negligent construction of such bridge the plaintiff's foot was caught therein, and the plaintiff was then and...

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