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

• Decision Date: 06 March 1897
• Citation: 48 P. 12,57 Kan. 719
• Parties: ATCHISON, T. & S. F. R. CO. v. TINDALL.
• Court: Kansas Supreme Court

48 P. 12

57 Kan. 719

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

Supreme Court of Kansas

March 6, 1897

Syllabus

1. In an action by an employee to recover damages from a railroad company for personal injuries alleged to have resulted from a defect in the railroad track, negligence will not be presumed, but must be proved. Testimony that there was a defect in the track, and that an injury occurred, is not enough to warrant a recovery. It is necessary to prove that the company knew of the defect, or that it was of such a nature or had existed for such a length of time that, in the exercise of ordinary care, it should have been discovered by the company, Doster, C. J., dissenting as to the application to the facts of the case.

2. If such employee voluntarily and needlessly places himself in a highly dangerous position, when there is a reasonably safe one provided for him, and he has time to exercise his judgment, and choose a safer place, and injury occurs to him by reason of his choice, he ordinarily cannot recover for such injury.

3. The testimony examined, and held to be insufficient to sustain the verdict and judgment.

Error from district court, Douglas county; A. W. Benson, Judge.

Action by Thomas H. Tindall against the Atchison, Topeka & Santa Fé Railroad Company. From a judgment for plaintiff defendant brings error. Reversed.

A. A Hurd, W. Littlefield, and O. J. Wood, for plaintiff in error.

Waters & Waters, for defendant in error.

OPINION

JOHNSTON, J.

This was an action by Thomas H. Tindall against the Atchison, Topeka & Santa Fe Railroad Company to recover for personal injuries alleged to have been suffered by him through the negligence of the railroad company. Tindall was a locomotive fireman engaged in the service of the company in New Mexico, and on the night of November 2, 1889, he was upon a locomotive with Thomas Williams, an engineer. They brought a train into the yards at Raton about midnight, and, no brakeman being present to uncouple the engine from the train or pilot it into the roundhouse, Tindall was directed by the engineer to uncouple the engine, which he did. Instead of getting back into the cab, Tindall then took a position on the front end of the engine, sitting upon the pilot beam, with his feet resting upon the pilot. The first switch to be thrown was between 300 and 400 yards from the starting point, and, upon a signal from him to the engineer, the engine was moved forward at a rate of about 5 miles an hour. There had been a storm, and snow was falling, and there was snow upon the pilot and front end of the engine. Tindall had a lantern upon his arm, and with one hand held onto the pilot brace. While reaching to his hip pocket with the other hand to obtain his gloves, there was a jar of the engine, which caused him to fall from the pilot. One of the wheels of the engine passed over and crushed his arm, so that amputation above the elbow was necessary. He alleges that the injury was caused by the negligent construction and maintenance of the track at the place where the injury occurred, and that the defect in the track was such that with proper diligence and care on the part of the company it could have been discovered and remedied in time to have prevented the injury. The company denied the charge of negligence, and averred that the injury was the result of his own carelessness. At the trial, the jury found that the injury was due to the negligence of the railroad company, and awarded $5,500 to Tindall as damages.

The sufficiency of the testimony to sustain the verdict is the first question to which our attention is directed. On the part of the company it is contended that the track was not defective or dangerous, and that, if there was a defect, the company did not know, and could not by the exercise of ordinary care have known, of its existence. What the defect was is not shown, and what caused the jar of the engine is a mystery not solved by the testimony. Williams, the engineer testified that, "at the time he fell, I felt a jar of the engine, as if we struck a rough place in the track. Of course, I couldn’t tell just what it was, but it felt like a low joint." Again, he stated that "I felt a jar of the engine as if there was a rough track. At the time, of course, I couldn’t say exactly what kind of a track it was, but the track was rough there at that time; at least, it felt that way." After stating that some jars were usually felt upon the engine, he testified that the one that occurred when Tindall fell off the engine was "above the ordinary." In answer to an inquiry as to how he came to fall from the pilot of the engine, Tindall testified as follows: "It felt like she came against something, and struck pretty hard, and I was thrown off. Q. What was the matter with that track, if you know? A. There was a rough piece of track. Q. You are conversant with the condition of the tracks in the yard limits and on the mainline track? A. Yes, Sir. Q. State to the jury how it compares in point of roughness with the ordinary siding and the ordinary switches, if you know. A. Well, we are used to ordinary bumps on the tracks. We don’t pay any attention to those. You have always to look for ordinary track. Q. Well, what was this? A. Well, this was over the ordinary rough track." As the jury have found, there was no evidence to show that there was a low joint in the track where the injury occurred. Shortly after the injury, Tindall requested an employee in the yards, named Bennett, to make an examination of the track at the place of the injury, which he did, but he did not find any low joint there, nor anything wrong with the rails except that two bolts were gone from one of the joints. The rails were in their proper places, and were spiked down all right; and the jury have found that the absence of the two bolts in the fish plates joining the rails did not render the track dangerous upon which to run an engine at the speed of five miles per hour. It appears that the tracks in the yards are not as smooth and as solid as the main-line track; and that they are not required to be maintained at the same standard of perfection as the main-line track, where greater speed is necessary, is conceded. There were employees in the yards whose duty it was to maintain the tracks in suitable condition, and, although said to be "somewhat rough," no particular defect has been pointed out. Wherein was the company negligent? No one discovered any defect in the track, and no one knew what caused the jar. While to one witness it felt like a low joint, yet, upon examination, none was found; and, at the place where the injury occurred, it is not shown that the track was out of alignment or out of repair. Whether the jar was caused by a defect in the track, or a...