29 P. 1138 (Kan. 1892), Clark v. Missouri Pac. Ry. Co.
|Citation:||29 P. 1138, 48 Kan. 654|
|Opinion Judge:||HORTON, C. J.:|
|Party Name:||CAROLINE CLARK, as Administratrix of the estate of Wm. D. Clark, deceased, v. THE MISSOURI PACIFIC RAILWAY COMPANY|
|Attorney:||A. D. Wilson, and Kennett, Peck & Matson, for plaintiff in error. Waggener, Martin & Orr, for defendant in error.|
|Judge Panel:||HORTON, C. J. All the Justices concurring.|
|Case Date:||May 07, 1892|
|Court:||Supreme Court of Kansas|
Error from Cloud District Court.
ON March 22, 1887, Caroline Clark, as administratrix of the estate of William D. Clark, deceased, commenced her action in the district court of Cloud county, to recover $10,000 as damages by the reason of the death of William D. Clark. It was alleged in the petition that William D. Clark was, on December 12, 1885, in the service of the defendant as a brakeman on one of its trains running from Burr Oak, in Jewell county, to Jamestown, in Cloud county, on the Jewell branch of the Central Branch Union Pacific railroad, controlled and operated by the defendant, and that he was injured at an intermediate station called "Randall," on the branch, and that he died on December 14, 1885. The circumstances of the injury are alleged in the petition, as follows:
"That while at said Randall station part of said train of cars was switched upon the side-track of said station, and the said Wm. D. Clark, as a part of his duties as said brakeman, was then and there required to and did then and there couple and uncouple certain cars of said train; that while so engaged said train of cars, to wit, that part of said train of cars that had been switched upon said side-track, was pulled off of said side-track upon the main track of said road and east of the east end of said side-track, and the said Wm. D. Clark was then and there, on said main track, required to continue to do and perform, and did do and attempt to do the work of coupling and uncoupling the cars of said train; that at the place on said main track where said coupling and uncoupling were required to be done the road-bed, embankment and track, through the negligence and want of care of said defendant, were in a defective condition and badly out of repair, making it unsafe and dangerous for any one to do or attempt to do the work of coupling or uncoupling cars at this place in the manner in which said work had to be done by the said Wm. D. Clark; that he was not familiar with the condition of the road-bed, embankment and track at this point, and did not know, from the condition that said road-bed, embankment and track was then in at said place, that it was dangerous and unsafe to couple or uncouple, or attempt to couple or uncouple, cars at said place, and it being dark at the time, he was prevented by the darkness from seeing the bad condition the said road-bed, embankment and track at said place was then in, and did not know that it was dangerous and unsafe for him to couple or uncouple, or attempt to couple or uncouple, cars at said place; that notwithstanding the said Wm. D. Clark, at said time and place, was required and obliged, in the line of his duty as such brakeman, to couple and uncouple the cars of said train, and that whilst so engaged, and without any negligence or fault on his part, the said Wm. D. Clark, by reason of the said road-bed, embankment and track being defective and out of repair at said place, while in the act of coupling or uncoupling a car of said train, slipped and fell between and under the cars of defendant's said train, said train being then in motion, and so immediately set in motion by the employes of the said defendant in the control of said train; that by reason of said fall caused by the defective condition of said road-bed, embankment, and track, causing the said Wm. D. Clark to slip and to fall between and under the cars of defendant's train then in motion, the said Wm. D. Clark was then and there sorely and grievously injured, and had his right leg crushed, mangled, and broken, both above and below the knee, and was otherwise injured."
The petition further alleged:
"That after the said injuries were received by the said Wm. D. Clark as aforesaid, and on the same day, the said Wm. D. Clark was removed and conveyed by the said defendant and defendant's employes from said Randall station to the said Jamestown, in Cloud county, Kansas, and by the said defendant there placed in charge, care and control of the physicians and surgeons of said defendant, then in the service and employ of the said Missouri Pacific Railway Company, to be cared for and treated by them for the injuries received; that the said physicians and surgeons...
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