Atchison

• Decision Date: 04 June 1885
• Citation: 7 P. 204,33 Kan. 660
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. ROBERT WAGNER

7 P. 204

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

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, 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 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 the coach slipped by the draw-head of the engine, and catching the plaintiff's leg broke it about two or three inches above the knee. This incapacitated him for work for a long time, and he endured pain and incurred expense, but his leg finally got to be nearly as well and sound as before the accident. No negligence is imputed to the yard-master or to the engineer, and it is not claimed that the engine or the passenger coach was in any manner defective or out of order, except the defects in the coupling-pins, of which the plaintiff had full and complete knowledge, and the spring or appurtenances connected with the draw-bar of the passenger coach, of which the plaintiff did not have any notice or knowledge. Indeed, no person is shown to have had any notice or knowledge of any defect in such draw-bar, or in anything connected therewith; and it is certainly at least very doubtful whether there was in fact any such defect. The jury, however, upon very weak evidence found that there was such a defect; and for the purposes of this case we shall assume that there was.

The question then arises, is the defendant liable because of such defect, and upon the other facts of this case? We think not. It must be remembered that the question in this case does not arise between the railroad company and a passenger, or between the railroad company and some third person having no connection or contract relation with the railroad company; but it arises between the railroad company and one of its employes, who by reason of his employment has assumed all the ordinary risks and hazards incident to his employment. A passenger pays to be protected from all the risks and hazards incident to the operation of a railroad, from which the railroad company can by the highest degree of skill and care protect him; while an employe of the railroad company is paid to assume all the risks and hazards incident to his employment; and a third person, having no connection or contract relation with the railroad company, stands upon his original legal rights, being neither protected by the railroad company nor assuming any of the dangers, risks or hazards incident to the operation of the railroad; and while such third person may not be placed in the same highly favorable situation with regard to dangers, risks and hazards as a passenger is, yet he is placed in a much more favorable situation than a mere employe of the railroad company, who is paid to take the risks and hazards of his employment. Hence, differences in the rules governing these various relations must be expected.

Mr. Thompson, in his work on Negligence, uses the following language:

"In an action by an employe against his employer for injuries sustained by the former in the course of his employment, from defective appliances, the presumption is that the appliances were not defective; and when it is shown that they were, then there is a further presumption that the employer had no notice or knowledge of this fact, and was not negligently ignorant of it." (2 Thompson on Negligence, p. 1053, § 48.)

Mr. Wood, in his work on Master and Servant, uses the following language:

"The servant seeking to recover for an injury, takes the burden upon himself of establishing negligence on the part of the master and due care on his own part. And he is met by two presumptions, both of which he must overcome in order to entitle him to a recovery: First, That the master has discharged his duty to him by providing suitable instrumentalities for the business and in keeping them in condition; and this involves proof of something more than the mere fact that the injury resulted from a defect in the machinery. It imposes upon him the burden of showing that the master had notice of the defect, or that in the exercise of that ordinary care which he is bound to observe he would have known it. When this is established, he is met by another presumption, the force of which must be overcome by him, and that is that he assumed all the usual and ordinary hazards of the business," etc. (Wood on Master and Servant, § 382.)

Shearman and Redfield, in their work on Negligence, use the following language:

"In actions brought by servants against their masters, the burden of proof as to the master's knowledge or culpability in lacking knowledge of the defect which led to the injury, whether in the character of a fellow-servant or in the quality of materials used, rests upon the plaintiff." (Shearman and Redfield on Negligence, § 99.)

Mr. Pierce, in his work on Railroads, uses the following language:

"The company's knowledge of a defect must be...