Atchison, T. & S. F. R. Co. v. Whitbeck

• Decision Date: 06 March 1897
• Parties: ATCHISON, T. & S. F. R. CO. v. WHITBECK.
• Court: Kansas Supreme Court

48 P. 16

57 Kan. 729

ATCHISON, T. & S. F. R. CO. v. WHITBECK.

Supreme Court of Kansas

March 6, 1897

Syllabus

1. A railroad company cannot be held liable for injuries received by a person who goes into one of its yards lawfully, merely because such yard is a dangerous place. It must be shown that it is unnecessarily dangerous through the act or omission of the company, and that the injury resulted from the negligence or wrongful act or omission of the company, and that the injury resulted from the negligence or wrongful act of the company or its employees.

2. Instructions should be framed to meet the facts of the case on trial; and in an action against a railroad company to recover for injuries received in moving cars at a stock yard where cattle were being loaded, it is error for the court to instruct with reference to gross negligence and wanton and malicious injury, where the evidence of negligence on the part of the company is weak, and where there is no testimony indicating gross negligence or wanton misconduct.

3. Where a case-made is settled and signed in due time, and the signature of the judge is attested by the signature of the clerk, but the seal of the trial court is omitted, permission being obtained from this court more than one year after the rendition of the judgment complained of, the seal may be attached to the attestation by the custodian thereof, and the petition in error will not be dismissed for want of the attestation. While affixing the seal is essential to a proper authentication of the record, where the case was in fact settled by the trial judge in due time the mere authentication of the judge’s signature by the seal is a formal matter of proof, which may be furnished after the expiration of the time limited for bringing cases to this court.

Error from district court, Osage county; William Thomson, Judge.

Action by John H. Whitbeck against the Atchison, Topeka & Santa Fe Railroad Company. From a judgment for plaintiff, defendant brings error. Reversed.

A. A. Hurd and Stambaugh & Hurd, for plaintiff in error.

David Overmyer, for defendant in error.

OPINION

ALLEN, J.

John H. Whitbeck brought suit against the railroad company to recover for injuries received by him while loading stock for shipment at the stock yards in Learned. It appears that he had engaged cars for two car loads of cattle which he wished to ship, and that he and other shippers, who also had stock went to the stock yards with the yard master for the purpose of loading the cattle. The train which was to take them out was due at 11 o’clock at night, but was four hours late. They commenced loading after dark on a dark, windy, and dusty night. There were two chutes for loading. After two cars had been loaded, they proceeded to move the last car away from one chute past the other, and for that purpose the plaintiff took a position on the side of the car next the yard, placing his shoulder against an upright piece projecting from the side of the car, to push. As the car passed the platform at the second chute, his overcoat caught on the platform, and when the car, the door of which projected out further than the balance of the side of the car, came along, it crushed him between the door and the platform, breaking his collar bone and some of his ribs. The petition charges that the defendant refused and neglected to place the cars for loading; that the yard master required the plaintiff and other shippers to assist him in placing the cars; that the plaintiff objected to doing so, but owing to the necessity of getting the cattle loaded, and in obedience to the directions of the yard master, he did take hold of the cars to place them for loading; and that he was injured while so doing. The petition then alleges "that the said yard master, then and there being an employee of and in the service of said defendant company, carelessly and negligently failed and omitted to give plaintiff any notice or warning whatever respecting the dangerous proximity of said platform to said car when in motion." The answer of the defendant was a general denial, and also a special verified denial of the authority of the yard master, as agent of the company, to require the plaintiff to place cars for loading. The defendant objected to the introduction of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action, and also demurred to the evidence offered by the plaintiff at the trial. Error is alleged in these rulings. It must be conceded that the averments of negligence in the petition are very meager. It is not charged that the platform at the stock chute was differently constructed from those generally used, nor that it was unnecessarily dangerous, though it is stated that the space between the door of the car and the platform was too narrow for plaintiff’s body. It cannot be said that the petition shows that the platform was improperly constructed or unnecessarily dangerous. The only negligence directly charged is in the refusal of the company’s agent to have the cars placed for loading by the engine, and in the failure of the yard master to inform the plaintiff of the dangerous proximity of the platform to a passing car. As against an objection to the introduction of testimony, we think the petition stated a cause of action. The testimony disclosed some other facts bearing on the question of negligence, not pleaded, and, among those, the darkness of the night, and the absence of lights about the yards to enable the men to see and appreciate the danger of the situation. It cannot be said that there was an entire absence of proof to support the plaintiff’s claim; nor can it be declared, as a matter of law, that the plaintiff, though an experienced shipper of stock, accustomed to load cattle at railroad yards, voluntarily assumed the risk which resulted in his injury. These were matters to be tried and determined by the jury, under proper...