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Error
from Johnson District Court.
ON
December 29, 1885, plaintiff below filed his petition in the
Johnson county district court against the Atchison, Topeka
& Santa Fe Railroad Company, as follows (court and title
omitted):
"The
said William Sadler, plaintiff herein, complains of the said
defendant, the Atchison, Topeka & Santa Fe Railroad
Company, defendant herein, for that the defendant is now and
was at the date hereinafter stated a railroad corporation
duly organized under the laws of the state of Kansas, with
its principal office in said state, and has an office in
Johnson county, in said state, and does business in said
county through which its said line of railway and its cars
run and are operated.
"The
plaintiff, complaining, states that on or about the 31st day
of March, 1885, he entered the employ of defendant company in
said county as a day workman, to repair the defendant's
road-bed, and was commonly called and known as a section
hand, on section number five of Kansas City division, in said
county, which said section laborers or 'gang' was
composed of a boss or foreman and from six to ten men in the
employ of the defendant company in and about its track and
road-bed; that on or about the 15th day of June, 1885, while
in the employ of defendant company as such section hand on
said division, and at or near Waseka or Holliday in said
county, under the direction and instruction of the then
'boss' or foreman, to wit, one Louis Damies, the
plaintiff was ordered by said boss to drive 'spikes'
and fasten down the iron rails to the sleepers belonging to
said company, with a certain sledge hammer or iron maul
furnished by the defendant company, which labor the plaintiff
did, and while performing such labor and not being familiar
with that branch of the work, and without any fault or
negligence on his part, and by reason of the fault,
carelessness and gross negligence of the defendant company,
and when the plaintiff was striking the iron spike with said
maul, the said spike which was about five inches in length,
flew from under the blow of said maul and the spike came in
contact with, and struck the plaintiff's left leg between
the knee and ankle-joint thereof, cutting through his pants
and lacerating the flesh and fracturing the bone, tendons and
muscles of said left leg aforesaid, causing the blood to flow
and thereby producing great pain and suffering, and thereby
disabling the plaintiff and preventing him from work and
earning a livelihood from about the 15th day of June, 1885,
until the filing of this petition; that by reason thereof
said leg is now in such injured and dangerous condition that
amputation of said leg at the knee-joint will shortly become
necessary; that abscesses formed upon said leg and passed to
the ankle-joint aforesaid and produced great pain and
suffering, and have caused blood poison and gangrene and
erysipelas to set in, thereby disabling him and greatly
endangering the said limb and life of plaintiff; that said
company was guilty of gross carelessness and gross negligence
in furnishing said tool or maul to plaintiff to work with;
and that said tool or iron maul so furnished by defendant
company to plaintiff, at the time the said injury was
received by him as. aforesaid, was unsafe, and worn out, a
piece was broken out of the face of it, and was defective and
dangerous; all of which the said defendant company well knew
prior to and at the time of furnishing the same as aforesaid,
as well prior to and at the time of the injury being done as
aforesaid, wherein and whereby the said defendant company was
grossly careless and grossly negligent, and that by reason
thereof the said plaintiff was injured and disabled as
aforesaid, and without any fault or negligence upon his part,
to his damage in the sum of five thousand dollars.
"Plaintiff
therefore demands judgment against said defendant company for
the sum of five thousand dollars, his damages so as aforesaid
sustained, with costs of suit."
ANSWER.
"1.
Now comes the said defendant, and for answer to the
plaintiff's petition filed in the above entitled-cause
denies each and every material allegation therein contained.
"2.
For a second and further defense the defendant says that the
injuries sustained by plaintiff were either the result of
accident, or the carelessness and negligence of said
plaintiff, and were not occasioned by the negligent act or
omission of said defendant, its agents or servants. And
therefore defendant prays judgment for costs."
REPLY.
"The
said William Sadler, plaintiff herein, for his reply to the
answer of the defendant herein denies each and every
allegation in said answer contained inconsistent with the
averments and allegations contained in plaintiff's
petition herein."
Trial
at the March Term, 1886. The court gave the following
instructions:
"1.
The burden rests upon the plaintiff to establish his right to
recover a judgment against the defendant in this action by a
preponderance of the evidence.
"2.
By a preponderance of the evidence is not necessarily meant
the greatest number of witnesses, but that evidence which is
in the judgment of the jurors, after a consideration and
examination of all the evidence, entitled to the greatest
weight.
"3.
The jury are the sole and exclusive judges of the weight of
the evidence and the credibility of the witnesses.
"4.
If, after an examination and consideration of all the
evidence, the jury believe that any witness has willfully and
corruptly testified falsely concerning any material fact in
controversy, you may disregard the whole or any part of the
evidence of such witness. There is no inflexible rule
requiring the jury to believe or disbelieve all or any
particular portion of the evidence of any witness.
"5.
To entitle plaintiff to recover in this action, it must
appear, first, that the plaintiff was injured while in the
employment of the defendant railroad company, and in the
regular course of such employment; second, that such injury
was caused by the negligence of the defendant company or its
employes or agents, or by the mismanagement of its employes,
to the plaintiff.
"6.
An employe of a railroad company, by virtue of his
employment, assumes all of the ordinary and usual risks and
hazards incident to his employment.
"7.
As between a railroad company and its employes, the railroad
company is not an insurer of the perfection of any of its
machinery, appliances or instrumentalities for the operation
of its railroad.
"8.
As between the railroad company and its employes, the
railroad company is required to exercise reasonable and
ordinary care and diligence, and only such, in furnishing to
its employes reasonably safe machinery and instrumentalities
for the operation of the road, and for the use of such
employes.
"9.
As between the parties to this action, the defendant would
not necessarily be negligent in the use of defective tools
not obviously defective; but is negligent in such cases only
where it has notice of the defects, or where it has failed to
exercise reasonable and ordinary care and diligence in
discovering them, and remedying them. And the plaintiff must
prove such defects by a preponderance of the evidence, and
also that the railroad company had notice of the defective or
dangerous condition of such tools, or that, by the exercise
of reasonable and ordinary care and diligence, it might have
obtained such notice.
"10.
To entitle the plaintiff to recover in this action, it must
appear from the evidence that the injury complained of was
caused by the negligence of the defendant. If the injury was
the result of the want of ordinary care on the part of the
plaintiff and the defendant, or by the use of ordinary care
the plaintiff might have avoided the injury, the plaintiff
cannot recover in this action.
"11.
By ordinary care is meant that degree of care which an
ordinarily careful and prudent man would reasonably be
expected to use under the circumstances.
"12.
If the plaintiff, as the employe of defendant, was injured in
consequence of defendant's negligence, and such injury
was subsequently aggravated by the want of ordinary care, or
by the negligence of the plaintiff, such fact should be
considered in mitigation of damages, but cannot defeat
plaintiff's right to recover for injuries for which
defendant is responsible.
"13.
If an employe knows that the materials or tools with which he
works are defective or dangerous, and he continues his work
without objection, and without being induced by his employer
to believe that a change will be made, he will be deemed to
have assumed the risk of using such defective or dangerous
tools, and cannot recover for an injury resulting therefrom.
"14.
If the jury find from the evidence that the defendant
furnished its employes, including plaintiff in this action
defective and unsafe tools to work with; that both plaintiff
and defendant had knowledge of the defective and dangerous
condition of said tools, but that defendant promised said
employes to repair said tools, or replace them with new
tools, and plaintiff, with knowledge of said promise on the
part of defendant, remained in the employment of defendant,
and continued to use said defective and dangerous tools; and
within a reasonable time for the fulfillment of said promise,
and in the regular course of his employment as aforesaid,
plaintiff was injured by reason of the defective and unsafe
condition of said tools, then I charge you that it is a
question of fact for the jury whether the plaintiff was
guilty of contributory...
