Atchison

• Decision Date: 07 November 1885
• Citation: 34 Kan. 326,8 P. 411
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ISAAC J. LEDBETTER

8 P. 411

34 Kan. 326

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ISAAC J. LEDBETTER

Supreme Court of Kansas

November 7, 1885

Error from Wyandotte District Court.

ACTION brought on May 31, 1883, by Isaac J. Ledbetter against The Atchison, Topeka & Santa Fe Railroad Company, to recover damages for personal injuries alleged to have been received by the plaintiff while in the employment of the defendant at Emporia, Kansas, on November 12, 1881. The plaintiff's cause of action is stated in his petition as follows:

"That the plaintiff was, on the 12th day of November, 1881, and had been for a long time prior thereto, in the employment of said defendant as a switchman, or yardman; that on the day aforesaid, the said plaintiff, while in the due and ordinary discharge of his duty as such switchman or yardman, and while attempting to couple a moving engine onto a stock car--then standing upon the track of defendant in the yard of said defendant at Emporia Junction, in the county of Lyon, in the state of Kansas--was severely and permanently injured; that the said injury was wholly caused by the defective and bad condition of said stock car; that the defendant negligently failed to inspect and ascertain its defective and bad condition prior to that time, and that it had a reasonable opportunity so to do; that the defendant knew that the said stock car was in a defective and bad condition prior to that time, and that it had reasonable opportunity for so knowing that at the time of the said injury the plaintiff was in the exercise of ordinary care; that the defendant negligently failed to give warning or information to the plaintiff that the said stock car was in a defective and bad condition, and that the plaintiff had no knowledge of its defective and bad condition, or opportunity to ascertain the same."

The plaintiff claimed judgment for $ 10,000. The answer of the defendant was a general denial. On July 24 to July 29, 1884 a trial was had before the court and a jury, which trial resulted in a verdict and judgment in favor of the plaintiff and against the defendant for $ 5,000 and costs. The jury also made special findings of fact. The defendant moved for a new trial upon various grounds, which motion was overruled by the court. On December 4, 1884, the defendant brought the case to this court for review.

Judgment reversed and remanded.

James Hagerman, A. A. Hurd, and Robert Dunlap, for plaintiff in error; Geo. W. McCrary, general counsel.

Thomas P. Fenlon, Joseph S. Ensminger, and Waters & Chase, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

The principal facts brought into this case by the parties, and upon which the plaintiff's cause of action is to be sustained or defeated, are substantially as follows: During the month of November, 1881, and prior thereto, the plaintiff, Isaac J. Ledbetter, was in the employment of the defendant, the Atchison, Topeka & Santa Fe Railroad Company, as a yard switchman at Emporia, Kansas. At that point the defendant had two yards, one at the junction of the M. K. & T. Railway with the Atchison, Topeka & Santa Fe Railroad, and called the "upper yard," and the other about one mile west from there, and called the "lower yard." There were three car inspectors at these yards, two of whom were to perform their duties in the day-time and the other to perform his duties in the night-time, and their principal duties were to inspect cars as they were brought into the yards from other places, and if a car was found to be in such condition as to be unfit for use, to mark it "Bad order" and have it placed on the repair track for repairs or sent to the general repair shops at Topeka for such purpose. It was also the duty of the yard switchmen to inform the car inspectors of any defects or imperfections which they might discover in any of the cars while performing their work. There was also a physician and surgeon residing at Emporia, near these yards, who was employed by the defendant railroad company to attend professionally to any of the defendant's employes who might become disabled or injured while in the defendant's service, free to the employes and at the defendant's expense.

The defendant also had car repairers and many other employes at those two yards. In the afternoon of November 11, 1881, the plaintiff coupled the switch engine to the west end of a Vandalia stock car, which was then standing on a track in the lower yard and contained sheep, and the engine and car were then taken to the stock chute in the upper yard, and there the brakes of the car were set and the car left to be unloaded. On the next morning, November 12, 1881, the plaintiff coupled the same engine to the same end of the same car, the car at the time standing at the same place and in the same condition at which and in which it was left the day before. The car was then removed and placed on a side track. The engine was then taken around to the other end of the car and was backed toward the car, the tender being between the engine and the car, and the plaintiff stood on the foot-board of the tender, and when the tender came near the car he proceeded to couple them together. When the draw-bar, or draft-iron as it is sometimes called, of the tender struck the draw-bar or draft-iron of the car, the draw-bar of the car was pushed under the dead-wood of such car, without shock, collision or stroke, and the plaintiff was caught sidewise about the hips, between the dead-wood of the car and the iron band beneath the draw-bar of the tender, and was pressed or squeezed in such a manner as to cause the injuries complained of. He probably received some slight injuries, but no bones were broken or fractured. The car was not marked out of order or in bad order, or in any other manner, and there is no evidence that it was out of order, except the foregoing facts; and what was out of order, defective or imperfect, if there were any defects or imperfections, no one knows, except from the foregoing facts.

The plaintiff said nothing at the time about being squeezed, or hurt, or the car being out of order, and the engineer fireman and foreman of the yard gang, who were present at the time, had no knowledge of the same. The plaintiff then got off the foot-board of the tender and sat down upon the sidetrack near by for a few minutes, and then got on the foot-board of the tender again and rode from that place down toward the lower yard to Commercial street, in the city of Emporia, where he left the engine, tender and car with the engineer, fireman and foreman, who accompanied him from the upper yard, and walked to his home in Emporia, a distance of three or four blocks. What was afterward done with the car is not shown. When the plaintiff arrived at his home, he lay down until dinner. He examined his person and found some bruises upon his hips. He got up and ate his dinner, and then lay down again until three o'clock in the afternoon, when he went back to the yards and worked till night. He worked the rest of the month of November for the defendant, and all the month of December, except the period between Christmas and New Year, when he was given a vacation, and all the month of January, and quit work for the defendant in February, and went back to his old home in the state of Illinois. Afterward he returned to Kansas, and, after working for two or three different railroad companies, commenced again on September 17, 1882, to work for the defendant, at Emporia, and afterward worked for the defendant at Argentine, commencing about December 20, 1882. He worked for the defendant at this place until about April 17, 1883, when he...