27 P. 965 (Kan. 1891), Atchison

Citation:27 P. 965, 47 Kan. 315
Opinion Judge:VALENTINE, J.:
Attorney:Geo. R. Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error. E. N. Smith, Aikman & Brooks, and J. B. Larimer, for defendant in error.
Judge Panel:VALENTINE, J. All the Justices concurring.
Case Date:November 07, 1891
Court:Supreme Court of Kansas

Page 965

27 P. 965 (Kan. 1891)

47 Kan. 315




Supreme Court of Kansas

November 7, 1891

Error from Butler District Court.

THIS was an action brought in the district court of Butler county, on February 24, 1887, by Jacob Schroeder against the Atchison, Topeka & Santa Fe Railroad Company, to recover damages to the amount of $ 5,000, for alleged personal injuries. On March 7, 1888, the plaintiff amended his petition, setting forth his cause or causes of action in two counts, the first of which reads as follows:

"The plaintiff, for his cause of action against the defendant, says, that he has been in the employ of various railroad companies for 16 years last past, and that for the last 10 years he had been in the employ of the defendant, the Atchison, Topeka & Santa Fe Railroad Company, in the capacity of section foreman, and that he has during all that time honestly and faithfully performed every duty required of him as such foreman; that he has given to said defendant his entire time, attention, and services, and has at all times obeyed and complied with all the requests and orders emanating from those in authority over him, and says that in the regular discharge of his duty as such foreman in charge of section No. 4CX, on the Florence, El Dorado & Walnut Valley railroad, owned and operated by the defendant, that the defendant furnished the plaintiff with only one man to assist him in keeping said section No. 4CX in order and in good repair, and that he so employed as such foreman and with said help was ordered, by the agents and employes of the defendant railroad company in authority over him, to replace certain rails on said track of said company's railroad, and which said rails it was necessary to replace for the safety of the passengers on the said line of road, and for the cars running thereon; and that said rails were of the weight of 560 pounds each, which rails the defendant required this plaintiff, as such foreman, with the aid of only one man, to load on hand-cars, take to the place where wanted, and place upon the ties of said line of railroad.

"And the plaintiff alleges and avers the fact to be that the labor required of him by the defendant was unusual and extra hazardous, and exposed the plaintiff to unusual and extra hazardous risks to life and limb and of injury to his health and strength; and that the defendant knew that said labor was unusual and extra hazardous, and demanded the plaintiff to perform such labor and to handle such rails knowing said labor was unusual and extra hazardous, and then and there informed the plaintiff that unless he handled such rails and performed such services that he would be discharged from the services of the company and from the position of foreman, and a man put in his place who would handle such rails of the weight of 560 pounds, with the help as above stated.

"The plaintiff alleges that he objected to performing the work so required, and notified the defendant of his objections, and that the defendant stated to the plaintiff that he could take his choice, to perform the labor or throw up his job as foreman on said section; and that the plaintiff, after two or three times notifying the railroad company of the great risk there was in attempting to handle such rails, at the special instance and request of the defendant undertook said work and labor, cautiously and prudently guarding against accident and unnecessary exposure, notwithstanding, however, after the plaintiff had used all the caution that it was possible for him to use in handling said rails, and placing them upon the ties, as required by the defendant, in the regular discharge of his duty as such foreman, without any fault or negligence on his part whatever, the plaintiff received a severe injury, which injury will incapacitate him from the kind of work which he has heretofore been able to perform, or any other manual labor requiring great strength and endurance, which he had before that time possessed; which injury consisted of a rupture in the right side, which was caused by the handling of said rails for the defendant as above stated, and which injury greatly prostrated the plaintiff, and rendered him incapable of...

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