[Copyrighted Material Omitted]
Error
from Sedgwick District Court.
ACTION
brought February 24, 1884, by J. C. Davis against The
Atchison, Topeka & Santa Fe Railroad Company, to recover
damages for personal injuries alleged to have been received
in the city of Wichita, on December 26, 1883, by reason of a
collision of a wagon in which plaintiff was and a train of
cars alleged to have been operated by the employes and
servants of the railroad company. The company answered
denying generally all the allegations in plaintiff's
petition, and further alleged that plaintiff was guilty of
contributory negligence. Trial at the June Term, 1884. The
court, among other things, charged the jury as follows:
"It
is incumbent upon the plaintiff to prove that the injury
complained of was committed by the Atchison, Topeka &
Santa Fe Railroad Company. It is claimed by the defendant
that the train by which the plaintiff was injured was
operated by the Wichita & Western Railroad Company, and
that the persons in charge of and managing the train were the
servants and employes of the latter company, and not of the
defendant. This question is one of fact, to be determined by
you from all the evidence in the case. The burden is upon the
plaintiff to establish the fact that the train was being
operated by the Atchison, Topeka & Santa Fe Railroad
Company at the time, and if the evidence is evenly balanced
on the question, you should find for the defendant. If you
find from the evidence that the accident to the plaintiff
happened by a train of cars colliding with the wagon in which
he was riding, at the crossing of Oak street, on the railroad
track owned by the Wichita & Western Railroad Company, in
the city of Wichita, and that the train was at the time under
the control and management of men who were agents and
servants of the Wichita & Western Railroad Company, and
who were not in the employ or under the direction and control
of the defendant company, then you must find for the
defendant. The mere fact that the same men were officers of
the defendant company, and also of the Wichita & Western
Railroad Company, is not sufficient evidence to justify a
finding that the two companies were one and the same; and if
the evidence shows that the Wichita & Western Railroad
Company was a corporation duly created and organized under
the laws of the state of Kansas, and that the injuries to
plaintiff were caused by the negligence of its servants in
the management of its business, you cannot find the defendant
company liable for such negligence. But the last instruction
must be considered with this qualification: that what is true
of individuals is also true of corporations, in this respect
that one may be the servant of the other, and the servants of
the one may be under the control and direction of the other.
In determining the liability of the defendant in this case
for the acts of the men in charge of the train in question,
the true test is, what company had the control and direction
of the men in the operation of that train at the time? Was it
the defendant, or some other company? And if it was not the
defendant, it is immaterial, for the purposes of this case,
who it was; the defendant would not be liable. But if the
defendant in fact exercised the actual control of the men in
the management and operation of that train, it would be
liable for the negligence of the men in the operation of the
train, notwithstanding the men were at the time the servants
and engaged in the business of another company; and this
fact, as I have said, must be determined upon the whole
evidence in the case."
The
defendant asked the court to instruct the jury as follows:
"1.
I instruct you that under the evidence and the law in this
case, the defendant is not liable, and you must find a
verdict in its favor.
"2.
I instruct you that the defendant, the Atchison, Topeka &
Santa Fe Railroad Company, is in no manner responsible for
the negligent acts, if any, of the servants, agents or
employes of the Wichita & Western Railroad Company, who
were not in the employ of the defendant, or under its
management and control.
"3.
I instruct you that the mere fact that the Atchison, Topeka
& Santa Fe Railroad Company, by the purchase of the stock
and bonds, or either, of the Wichita & Western Railroad
Company, was aiding said railroad company in its
construction, is not sufficient to render said Atchison,
Topeka & Santa Fe Railroad Company liable to the
plaintiff in this action.
"4.
I instruct you that if you find from the evidence that the
accident happened by a train of cars colliding with the wagon
in which plaintiff was riding, at the Oak street crossing, in
Wichita, on the tracks owned by the Wichita & Western
Railroad Company, and that the said train was under the
control and management of persons who were the agents and
servants of the Wichita & Western Railroad Company and
were not in the employ of the Atchison, Topeka & Santa Fe
Railroad Company, then you must find for the defendant."
The
court refused to give these instructions, to which refusal
the company excepted. The jury returned a verdict for the
plaintiff, and assessed his damages at the sum of $ 2,500,
and also made the following special findings:
"1.
Is it not a fact that the persons present, or having to do
with the train which collided with plaintiff's wagon and
caused the injury, were Charles Plank, the conductor, and
George Beals, brakeman, and Richardson, who was running the
engine? and if not, state fully the names of all other
persons present, who in any manner had anything to do with
the running of said trains. A. Yes.
"2.
Is it not a fact that at the time of the accident resulting
in plaintiff's injury, Charles Plank, the conductor of
the train, Richardson, the person who was running the engine,
and George Beals, the brakeman, were each of them in the
employ of and on the pay-rolls of the Wichita & Western
Railroad Company? A. They were on the pay-rolls of the
Wichita & Western Railroad.
"3.
Is it not a fact that the Wichita & Western Railroad
Company is a corporation duly incorporated under the laws of
the state of Kansas for the purpose of constructing, owning
and operating a railroad from Wichita west? A. Don't
know.
"4.
Is it not a fact that neither conductor Plank, nor brakeman
George Beals, nor Richardson, were, either of them, at the
time of the accident resulting in plaintiff's injuries,
agents or servants or in the employ of or under the control
of the Atchison, Topeka & Santa Fe Railroad Company? A.
No.
"5.
If you answer the last question in the negative, state fully
which of such persons were in the employ of the Atchison,
Topeka & Santa Fe Railroad Company; state what positions
they held, if any; what services they performed for said
company, and what the duties of such employment for said
Atchison, Topeka & Santa Fe Railroad Company consisted
of. A. Charles Plank, conductor; George Beals, brakeman;
Richardson, fireman. We find they were agents or servants or
in the employ or under the control of the A. T. & S. F.
Rld. Co.
"6.
Is it not a fact that just prior to said accident, the
plaintiff was driving eastward, on Oak street, in the city of
Wichita, toward the railroad tracks situated near the union
depot in Wichita? A. Yes.
"7.
Is it not a fact that there was situated on the south side of
Oak street, and about four or five rods from the west
railroad track, a peach orchard, about three or four rods
wide and four or five rods long? A. Yes.
"8.
Is it not a fact that the peach orchard referred to in the
last question was situated about sixty-four feet from the
west rail of said railroad tracks? A. Yes.
"9.
Is it not a fact that after the plaintiff passed said peach
orchard there was nothing to obstruct his view of the main
track, on which said engine and train of cars were
approaching, which would prevent him from seeing said
approaching engine and cars for a distance of several blocks,
had he looked toward the south? A. Don't know.
"10.
If you answer the last question in the negative, state fully
what such obstructions consisted of, and the height and
location of the same. A. Don't know.
"11.
Is it not a fact that the track on which the train was
approaching from Oak street south to Douglas avenue, in the
city of Wichita, was straight, or nearly so? A. Yes.
"12.
State what there was, if anything, to prevent plaintiff from
seeing said approaching train, had he looked to the south,
after passing the corner of said peach orchard, anywhere
between Oak street and the old railroad depot on Douglas
avenue in said city, giving location and height of such
obstruction. A. Don't know.
"13.
Is it not a fact that the railroad track on which said train
was passing at the time of said accident, belongs to the
Wichita & Western Railroad Company? A. No.
"14.
Was it not about 1 o'clock P. M., on a bright, clear day,
when the alleged injury to plaintiff was done? A. No.
"15.
Was not plaintiff at that time in the possession of full
mental and physical powers, with his senses of sight and
hearing unimpaired? A. Yes."
The
railroad company filed its motion for judgment upon the
special findings, which was overruled. Thereupon it filed its
motion for a new trial, which was also overruled. Judgment
was entered upon the verdict in favor of the plaintiff and
against the railroad company for the sum of $ 2,500...
