Beeson v. Busenbark

• Decision Date: 08 November 1890
• Citation: 25 P. 48,44 Kan. 669
• Parties: J. H. BEESON et al. v. HARRY E. BUSENBARK
• Court: Kansas Supreme Court

25 P. 48

44 Kan. 669

J. H. BEESON et al. v. HARRY E. BUSENBARK

Supreme Court of Kansas

November 8, 1890

Error from Saline District Court.

THE opinion states the facts. Judgment for plaintiff Busenbark on January 8, 1887. The defendants, Beeson and another, bring the case here.

H. M Jackson, for plaintiffs in error.

Garver & Bond, for defendant in error.

OPINION

HORTON, C. J.:

This was an action in the court below for damages for personal injuries received by Harry E. Busenbark while in the employ of the defendants, Beeson & Selden. The jury returned a verdict for the plaintiff for $ 12,000, and judgment was entered for that amount against the defendants. They complain, and bring the case here.

It appears from the record that the Kansas & Colorado Railroad Company -- an auxiliary of the Missouri Pacific Railway -- is a corporation organized under the laws of this state, and doing business as a railroad company in this state. W. V. McCracken & Co. were the original contractors with the railroad company for the construction of its road through Saline, McPherson, Rice, Barton, and other counties of the state. McCracken & Co. sub-let the construction of the road to Beeson & Selden between Salina and the east line of Ness county. McCracken & Co. were to furnish all the locomotives, not to exceed three, and cars, including boarding-cars, for the use of Beeson &amp Selden in carrying out the contract. Beeson & Selden were to receive all material at Salina and transport the same at their own cost and expense, including all unloading, loading and reloading of such material, under direction of the engineer in charge, and as he should deem necessary. After fifteen miles of track had been laid from Salina west, Beeson & Selden sub-let a portion of the work to Bracey & Harris. Bracey & Harris were to do all work in the track-laying, and to load and unload material, but Beeson & Selden were to transport the material and provide the train service. Beeson & Selden employed and paid the trainmen, including the plaintiff. Trains were operated on the road by Beeson & Selden. About October 25, 1886, the Missouri Pacific Railway Company began running trains over the road between Salina and Geneseo. Beeson & Selden retained their own trains in completing the construction of the road. On October 27, 1886, just after dark, Harry Busenbark, a fireman in the employ of Beeson & Selden, while at Geneseo with his engine, getting ready to go with a train of cars to Salina after material, under the order of his engineer, went under his engine for the purpose of cleaning the ashbox. While in that position another train, operated by Beeson & Selden, was backed against the train to which the engine was attached under which Busenbark was cleaning the ashbox. This caused the engine to move. Busenbark's foot was crushed by one of the wheels of the engine. Subsequently it was amputated.

The petition alleged and the evidence tended to prove that a brakeman, or employe, of Beeson & Selden, whose duty it was to attend to the displaying of warning lights, failed to display any light or signal at the end of the train against which the other one backed. The petition alleged and the evidence tended to prove that both trains were negligently handled by the employes in charge thereof, and that the collision was caused by the negligence of such employes, as well as the failure to display any warning lights or signals. The petition alleged that J. H. Beeson and H. P. Selden were partners as Beeson & Selden in the work of construction. The petition nowhere alleged that Beeson & Selden were a railroad company, organized under the laws of this state, or any other state, or that they were a de facto railroad company. The evidence upon the trial did not tend to show that Beeson & Selden were a railroad company of this state, or of any other state. The court, among other instructions, gave the following:

"If the defendants were, at the time of the injury complained of, operating the Kansas & Colorado Railroad, or running trains upon said road for the purpose of carrying construction material, as well as freight and passengers when offered, not connected with the road, they would be liable under the statute for any injury which one employe of defendants might receive because of the negligence of another employe, without regard to who or what such negligent employe may be. The statute reads as follows: 'Every railroad company organized or doing business in this state shall be liable for all damages done to any employe of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employes, to any person sustaining such damages.' And in order to be doing the business of a railroad company, and to be liable under this statute, it is not necessary that they should hold themselves out to be common carriers, or that they should be required to carry all freight and passengers presented. It is the character of the work done, rather than the particular manner in which it is done, or the quantity done, that should determine this question. Neither is it necessary that defendants should have absolute control and management of the road. It is sufficient that they actually operate trains upon the road, either by themselves, or with the cooperation of others."

This instruction was not applicable under the petition or the facts disclosed upon the trial, and therefore was erroneous. Not only was it erroneous, but it was greatly prejudicial to the defendants. The statute referred to was passed in 1874. Its title is, "An act to define the liability of railroad companies in certain cases." The statute so far modifies and changes the common law that a servant or employe of a railroad company may maintain an action against such railroad company for any injury received while in the line of his employment, through the negligence of a fellow-servant or employe engaged with him in the same common work of the master or employer, unless such injured servant or employe has himself been guilty of negligence or want of ordinary care, which has directly contributed to produce the injury complained of. Previous to the statute of 1874 the rule of law which prevailed in this state exempted from liability all employers, including railroad companies, for injuries to their employes caused by the negligence or incompetency of a fellow-servant, unless they had employed such negligent or incompetent servant without proper inquiry as to his qualification, or had retained him after knowledge of his...