7 P. 204 (Kan. 1885), Atchison

Citation:7 P. 204, 33 Kan. 660
Opinion Judge:VALENTINE, J.:
Party Name:THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ROBERT WAGNER
Attorney:A. A. Hurd, John Reid, and W. C. Campbell, for plaintiff in error; Geo. W. McCrary, general counsel. Whiteside & Hutchinson, for defendant in error.
Judge Panel:VALENTINE, J. All the Justices concurring.
Case Date:June 04, 1885
Court:Supreme Court of Kansas
 
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Page 204

7 P. 204 (Kan. 1885)

33 Kan. 660

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

v.

ROBERT WAGNER

Supreme Court of Kansas

June 4, 1885

Error from Reno District Court.

ACTION brought by Wagner against The Railroad Company, to recover damages for personal injuries. Trial at the January Term, 1884, and judgment for plaintiff for $ 2,000 and costs. The Company brings the case here. The opinion states the material facts.

Judgment reversed and cause remanded for a new trial.

A. A. Hurd, John Reid, and W. C. Campbell, for plaintiff in error; Geo. W. McCrary, general counsel.

Whiteside & Hutchinson, for defendant in error.

VALENTINE, J. All the Justices concurring.

OPINION

Page 205

[33 Kan. 661] VALENTINE, J.:

This was an action brought by Robert Wagner against the Atchison, Topeka & Santa Fe Railroad Company, for damages for personal injuries alleged to have resulted from the negligence of the defendant. The case was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $ 2,000 and costs of suit; and from this judgment the defendant by petition in error appeals to this court.

It appears from the record brought to this court, that on December 23, 1881, and prior thereto, Wagner was in the employment of the railroad company as a yard switchman at Nickerson, Kansas. His duties as switchman required him to couple and uncouple cars, make up trains, etc. Nickerson being the end of a division of the defendant's railroad, it was customary at that place to take off a car or coach from the western-bound passenger train which arrived at that place each evening, and to put it on the eastern-bound passenger train the next morning. A switch engine was used for this purpose, and among the duties performed by Wagner were to couple and uncouple the passenger coach to and from this engine. The passenger coaches were equipped with a kind of draw-bars usually known as "the Miller coupling," an invention by which coaches are coupled to each other automatically, without the use of links or pins. Links or pins, however, [33 Kan. 662] may be used in coupling rolling stock equipped with this kind of coupling, and are so used whenever a coach equipped with this kind of coupling is coupled to another coach or car or engine not so equipped. The switch engine was equipped with an oval-faced draw-head, with two or three slots or shelves into which a link might be

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placed for coupling. One witness testified that this contrivance for coupling was called a "Hinckley switch-engine draw-head." In coupling or uncoupling coaches equipped with the Miller coupling to an engine equipped as this engine was, it was necessary to use a link and pins. On the morning of December 23, 1881, Wagner was ordered by J.W. Reed, the yard-master, to get on the switch engine, which had already been coupled to the passenger coach and was standing on the side track, and to place the passenger coach in the eastern-bound passenger train. Wagner got on the step or platform of the engine, and between the engine and the coach, for the purpose of obeying this order. The engine and coach were then moved by the engineer in obedience to a signal from Wagner, and when they arrived at the proper place Wagner endeavored to uncouple the engine from the passenger coach, and in doing so he attempted first to pull the pin from the draw-head on the engine, but finding that the head of the pin was broken and the pin difficult of removal, he then reached over to the draw-bar of the passenger coach and pulled that pin. The engine at the time was pushing against the coach, and the draw-bar of...

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