McMahon v. Henning

• Decision Date: 30 July 1880
• Citation: 3 F. 353
• Parties: McMAHON v. HENNING, Receiver.
• Court: U.S. District Court — District of Kansas

3 F. 353

McMAHON v. HENNING, Receiver.

United States Circuit Court, D. Kansas.

July 30, 1880

Gage &amp Ladd, for plaintiff.

Pratt Burmback & Ferrey and S. O. Thatcher, for defendant.

McCRARY C.J.

The plaintiff sued defendant, as receiver of the Lawrence Leavenworth & Galveston Railroad Company, to recover damages for personal injuries received while in defendant's employ. The defendant was, at the time of the accident engaged in operating said railroad under an appointment from this court as receiver thereof. The plaintiff sought to recover upon two grounds-- First, that his co-employe, one Bowles, who, at the time of the accident, was acting as yard master, was guilty of negligence in running certain cars, to be coupled together, at a great and dangerous speed, causing the injury to plaintiff, who was engaged in coupling; and, second, that defendant was guilty of negligence is using cars dangerous and defective in their construction, whereby plaintiff was injured. It was alleged that the coupling pin was old and bent, and that the bumpers were improperly constructed and located, and were thereby rendered exceedingly and unnecessarily dangerous. Issue was joined upon these allegations, the cause was tried before a jury, and there was a special finding by the jury as follows:

The jury was directed to answer the following questions: 'If the jury find the defendant guilty of negligence, which caused the injury to plaintiff, they will state in what it consists;' and the jury answered as follows: 'Answer. That the coupling-pin was worn and bent, and that there was negligence on the part of Bowles, the yard master, in not doing his duty carefully, and in not informing plaintiff of his change of purpose in placing the cars, and in the use of the cars with this particular pattern of bumpers or dead-wood. ' The jury also find specially that the cars were not in good repair; that the coupling-pin was worn and bent; that the cars were not such as were generally in use on western roads; that the plaintiff's injury was in part caused by the use of defective bumpers; and that the bumpers used were more dangerous than others, by reason of being placed on the side of the draw bar instead of above it.'

An act of the legislature of Kansas, entitled 'An act to define the liability of railroad companies in certain cases,' approved February 26, 1874, provides as follows: 'Every railroad company organized or doing business in this state shall be liable for all damages done to any employe of such company in consequence of any negligence of its agents, or by any mismanagement of the engineer or other employe, to any person sustaining such damage. ' Comp. Laws of Kansas, 1879, c. 84, Sec. 29, p. 784.

The defendant moves to set aside the verdict, and for a new trial, upon the ground that the court erred in charging the jury that the statute was applicable to the case; and he argues with much force that a receiver, engaged in the operation of a railroad, is not a 'railroad company,' within the meaning of the act. In the view I take of the case it is not necessary to decide this important question.

By the special finding the fact is established satisfactorily, I think, that the injury...