Atchison

• Decision Date: 07 November 1891
• Citation: 47 Kan. 315,27 P. 965
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JACOB SCHROEDER

27 P. 965

47 Kan. 315

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JACOB SCHROEDER

Supreme Court of Kansas

November 7, 1891

Error from Butler District Court.

THIS was an action brought in the district court of Butler county on February 24, 1887, by Jacob Schroeder against the Atchison, Topeka & Santa Fe Railroad Company, to recover damages to the amount of $ 5,000, for alleged personal injuries. On March 7, 1888, the plaintiff amended his petition, setting forth his cause or causes of action in two counts, the first of which reads as follows:

"The plaintiff, for his cause of action against the defendant says, that he has been in the employ of various railroad companies for 16 years last past, and that for the last 10 years he had been in the employ of the defendant, the Atchison, Topeka & Santa Fe Railroad Company, in the capacity of section foreman, and that he has during all that time honestly and faithfully performed every duty required of him as such foreman; that he has given to said defendant his entire time, attention, and services, and has at all times obeyed and complied with all the requests and orders emanating from those in authority over him, and says that in the regular discharge of his duty as such foreman in charge of section No. 4CX, on the Florence, El Dorado & Walnut Valley railroad, owned and operated by the defendant, that the defendant furnished the plaintiff with only one man to assist him in keeping said section No. 4CX in order and in good repair, and that he so employed as such foreman and with said help was ordered, by the agents and employes of the defendant railroad company in authority over him, to replace certain rails on said track of said company's railroad and which said rails it was necessary to replace for the safety of the passengers on the said line of road, and for the cars running thereon; and that said rails were of the weight of 560 pounds each, which rails the defendant required this plaintiff, as such foreman, with the aid of only one man, to load on hand-cars, take to the place where wanted and place upon the ties of said line of railroad.

"And the plaintiff alleges and avers the fact to be that the labor required of him by the defendant was unusual and extra hazardous, and exposed the plaintiff to unusual and extra hazardous risks to life and limb and of injury to his health and strength; and that the defendant knew that said labor was unusual and extra hazardous, and demanded the plaintiff to perform such labor and to handle such rails knowing said labor was unusual and extra hazardous, and then and there informed the plaintiff that unless he handled such rails and performed such services that he would be discharged from the services of the company and from the position of foreman, and a man put in his place who would handle such rails of the weight of 560 pounds, with the help as above stated.

"The plaintiff alleges that he objected to performing the work so required, and notified the defendant of his objections, and that the defendant stated to the plaintiff that he could take his choice, to perform the labor or throw up his job as foreman on said section; and that the plaintiff, after two or three times notifying the railroad company of the great risk there was in attempting to handle such rails, at the special instance and request of the defendant undertook said work and labor, cautiously and prudently guarding against accident and unnecessary exposure, notwithstanding, however, after the plaintiff had used all the caution that it was possible for him to use in handling said rails, and placing them upon the ties, as required by the defendant, in the regular discharge of his duty as such foreman, without any fault or negligence on his part whatever, the plaintiff received a severe injury, which injury will incapacitate him from the kind of work which he has heretofore been able to perform, or any other manual labor requiring great strength and endurance, which he had before that time possessed; which injury consisted of a rupture in the right side, which was caused by the handling of said rails for the defendant as above stated, and which injury greatly prostrated the plaintiff, and rendered him incapable of performing any manual labor whatever for some time thereafter; and that ever since said injury he has been compelled to wear a truss, and that he cannot and dare not exercise himself violently or to his full capacity or strength; and that, by reason of said injury he has been made a cripple, and is physically injured for life, to his great damage in the sum of $ 5,000.

"The plaintiff further alleges, that immediately after being injured he reported the fact to the defendant, and that said defendant has failed and refused to compensate him for said damage. The plaintiff further alleges, that having been injured in the manner and form above specified, and incapacitated from hard work, that he applied to A. A. Robinson, the agent and employe of the defendant, high in authority, for a position in the employ of the defendant with less exposure, less risk and not requiring so much physical ability, tendering and offering to the defendant his time and services to the full extent of his strength remaining since said injury, but that the defendant has failed, neglected and refused to furnish the plaintiff with any other or lighter employment, but on the contrary has lately notified the plaintiff that they no longer desired his services, and have dismissed and discharged the plaintiff, against his wish and desire."

The defendant demurred to this petition upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled; and the defendant then answered, setting forth -- first, a general denial; second, that the injuries complained of were caused by the plaintiff's own negligence; third, the two years' statute of limitations. A trial was had before the court and a jury, and at the beginning of the trial the defendant objected to the introduction of any evidence, upon the ground that the petition did not state facts sufficient to constitute a cause of action. This objection was overruled as to the first count, and sustained as to the second count, and the trial then proceeded upon the first count only. After the evidence was all introduced, the court gave to the jury the following among other instructions, to wit:

"You are instructed that a railroad company is bound to use reasonable precautions for the safety of its employes, and this extends to the furnishing sufficient force for the performance of any duty only ordinarily hazardous when performed by a sufficient force, but which would be extraordinarily hazardous when undertaken by an insufficient force; but in such case if the employe undertook such duty without objection, knowing it to be extra hazardous, he would not be entitled to recover for any injury received in the performance of such duty; but, on the other hand, if he made his objections to his performance of such duty known, but was notwithstanding directed or ordered to undertake the same and received an injury therefrom, he would be entitled to recover."

The court also refused to give to the jury various instructions asked for by the defendant. At the close of the trial the jury found a general verdict in favor of the plaintiff and against the defendant, and assessed the plaintiff's damages at $ 3,000; and the jury also made a number of special findings. The defendant then moved to set aside the general verdict and for judgment in its favor, which motion was overruled, and then the defendant filed and presented a motion for a new trial upon various grounds, which motion was also overruled; and the court then rendered judgment in favor of the plaintiff and against the defendant for the amount of damages found by the jury, and for costs; and the defendant, as plaintiff in error, brings the case to this court for review.

Judgment reversed and cause remanded.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

E. N Smith, Aikman & Brooks, and J. B....