Atchison v. Moore

• Decision Date: 03 January 1884
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JOHN P. MOORE

1 P. 644

31 Kan. 197

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. JOHN P. MOORE

Supreme Court of Kansas

January 3, 1884

Error from Wyandotte District Court.

ACTION by Moore against the Railroad Company to recover damages for bodily injuries. July 30, 1883, judgment for plaintiff for $ 10,000. New trial denied. Defendant brings the case here. The facts appear in A. T. & S. F. Rld. Co. v. Moore, 29 Kan 632, et seq., and in the opinion, infra.

Judgment affirmed.

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

Thos P. Fenlon, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action to recover damages for injuries sustained by the plaintiff, the defendant in error, near Montoya, Texas. The accident occurred on the morning of August 2, 1881. The plaintiff was a brakeman on a train which had started that morning from El Paso, Texas, to go to San Marcial, New Mexico. At the time of the accident he was on the engine, where he went to leave his lamp. When he saw the washout on the road ahead of the engine, he called to the engineer and made a jump to get off. The engine dropped down off the bridge six or eight feet, and the apron (a piece of sheet iron to cover the space between the engine and tender) was thrown over so hard that it flew back and caught the plaintiff's leg and cut it off. The case was before this court at our January term for 1883. (29 Kan. 632.) The judgment of the district court was then reversed, and the cause remanded. Upon the second trial, the jury returned a verdict for the plaintiff for $ 10,000. Judgment was rendered thereon in his favor, and the cause is before us again for review. Upon the former hearing in this court, the judgment was reversed because the trial court failed to instruct the jury as to the liability of the railroad company under the common law, which is in force in Texas.

The evidence upon the new trial was the same as that of the first trial. Therefore it is unnecessary to recite the facts here, as they are set forth at great length in the report of the case in 29 Kan., supra. In the former opinion in this case, Mr. Justice VALENTINE, speaking for the court, after a review of the facts said that--

"The railroad company in Texas, under the rule of the common law, would be liable to any one of its servants operating its road, for the negligence of any other one of its servants whose duty it was to keep the road in good condition, and who culpably failed to perform such duty or to give proper warning; for, in such a case, the two classes of servants would not be fellow-servants or coemployes, but the latter class would really be the representative of the master -- the representative of the railroad company -- and the failure of the servant would be within the line of his duties."

In view of this declaration of the law, the material question upon the second trial, aside from the alleged contributory negligence of the plaintiff, was whether the road master, one E. J. Guild, who had charge of the road from Las Cruces, New Mexico, to Montoya, Texas, was culpably negligent or not. He testified:

"That his duties were generally to direct repairs and keep the road in safe condition; that in case of any sudden or serious break in the road, or any apprehension of danger to trains to see, if possible, to have the road repaired, and notify the train dispatcher of the facts in the case, if he could not get them repaired; that it was his duty also in case of washouts to use every possible means to prevent accidents; that in the evening of August 1, 1881, he was informed by William Allen, the conductor of a train on the railroad, which had just reached Las Cruces from El Paso, 'that it was raining; that the water was rising in some of the creeks; and that if the rain continued, it was likely to wash the road.' He then left a message with the telegraph...