46 P. 938 (Kan. 1896), 9035, The Southern Kansas Railway Company v. Michaels

Docket Nº:9035
Citation:46 P. 938, 57 Kan. 474
Opinion Judge:JOHNSTON, J.
Party Name:THE SOUTHERN KANSAS RAILWAY COMPANY v. O. P. MICHAELS
Attorney:A. A. Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error. James A. Ray, and J. E. Halsell, for defendant in error.
Judge Panel:JOHNSTON, J. All the Justices concurring.
Case Date:December 05, 1896
Court:Supreme Court of Kansas
 
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Page 938

46 P. 938 (Kan. 1896)

57 Kan. 474

THE SOUTHERN KANSAS RAILWAY COMPANY

v.

O. P. MICHAELS

No. 9035

Supreme Court of Kansas

December 5, 1896

Decided July, 1896.

Error from Sumner District Court Hon. L. Nebeker, Judge pro tem.

AFFIRMED.

Judgment affirmed.

A. A. Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error.

James A. Ray, and J. E. Halsell, for defendant in error.

JOHNSTON, J. All the Justices concurring.

OPINION

[57 Kan. 475] JOHNSTON, J.

O. P. Michaels brought this action against the Southern Kansas Railway Company to recover for personal injuries received while acting as head-brakeman on a freight train running from Cherry Vale to Wellington. The distance between the points was more than 100 miles, and Longton was among the stations on the route. A branch road connected with the line at that point, and there were a number of sidetracks and switches in the yards. Michaels was an experienced brakeman. He was employed by the Company in that capacity in October, 1885, and continued in its service until May, 1886. He re-entered the employment of the Company in February, 1887, and was employed on the run mentioned until April 7, 1887. While engaged in switching in the Longton yards on that day he was hanging to the ladder on the side of a car, with his foot in the stirrup; and while signaling to the rear brakeman was struck on the back, knocked down, and severely injured by a switch-target, which is alleged to have been too close to the track. The switch-stand was midway between two tracks, and the center of the same was only 4 feet and 3 inches from the inside rail of either track. It was about 7 feet high, and on top there projected about 17 inches from the staff a spear or arrow-head used to [57 Kan. 476] indicate the direction in which the switch was turned. The cars of the Company projected about 25 inches over the rail, and when the 17-inch spear was turned it would leave a space of about 9 inches between the switch-target and the side of the car. It is customary and proper for the brakeman to hold to the ladder on the side of the car while switching about the yards; and at the time of the injury Michaels was engaged in the performance of his duty, and was giving directions to the rear brakeman with reference to a switch on another track which required adjustment. The train was moving west, while the brakeman with whom Michaels was communicating was east of him; and therefore his back was toward the switch-stand the target of which knocked him off. He was familiar with the yards, and had previously used the switch-stand; but he states that he had never observed that it was so close to the track as to make it dangerous for those who were upon the side of cars passing over the track.

There have been two trials of the case, and in each Michaels has been successful in obtaining a verdict. The first judgment was reversed on account of...

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