Bjorkman v. The Atchison

• Decision Date: 10 January 1925
• Docket Number: 25,549
• Court: Kansas Supreme Court
• Parties: CARL O. BJORKMAN, a Minor, by SOPHIA BJORKMAN, His Mother, as Next Friend, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

231 P. 1029

117 Kan. 420

CARL O. BJORKMAN, a Minor, by SOPHIA BJORKMAN, His Mother, as Next Friend, Appellant, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellee

No. 25,549

Supreme Court of Kansas

January 10, 1925

Decided January, 1925

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Put Off of Running Train--Special Findings--No Warrant for Judgment for Defendant. In an action against a railroad company for personal injuries, where a general verdict was rendered for the plaintiff, the special findings examined and held not to warrant the rendering of judgment for the defendant.

2. SAME--Excessive Verdict--New Trial. An apparently excessive verdict, which may have been induced by failure to give an instruction fairly stating defendant's theory of the case, was sufficient ground to compel the granting of a new trial.

A. L. Berger, of Kansas City, and G. B. Silverman, of Kansas City, Mo., for the appellant.

William R. Smith, Owen J. Wood, Alfred A. Scott, all of Topeka, Edwin S. McAnany, Maurice L. Alden, and Thos. M. Van Cleave, all of Kansas City, for appellee.

OPINION

HOPKINS, J.:

The action was one to recover damages for injury sustained by the plaintiff when jumping from one of defendant's trains. A general verdict for plaintiff was returned by the jury; also answers to special questions. The trial court overruled a motion by defendant for a new trial, but sustained its motion for judgment on the special findings. The plaintiff appeals.

The plaintiff at the time of the injury was nineteen years old and resided in Topeka. He had gone to Barton county to work in the harvest fields. About five o'clock in the morning of July 2, 1921, he boarded one of defendant's freight trains at Great Bend with the intention of going to Dodge City. His claim was that while he was on the train, about a mile from Great Bend, and while the train was running at about twenty miles an hour, one of the brakemen, William Louraine, approached him and demanded that he pay fifty cents or he would put him off; that he refused to pay the brakeman, whereupon the brakeman came toward him in a threatening attitude and manner, waving and motioning his hands and arms, and in a loud, angry, abusive manner ordered the plaintiff off the moving train, etc.; that, being in fear of the brakeman, he attempted to jump off the train, but fell in such manner that his leg and foot were crushed to such an extent that amputation of the foot was necessary. The jury returned a general verdict for plaintiff for $ 21,000 and answered special questions as follows:

"1. When Bernard Hallock got on top of a freight car and looked west and saw Carl O. Bjorkman's head and shoulders above the top of a box car about three cars forward on the train, was William Louraine, defendant's brakeman, on said box car with a club in his hands? A. Yes.

"2. Did William Louraine, defendant's brakeman, demand four bits from Carl O. Bjorkman as he was climbing on the top of a box car about the middle of the freight train, and threaten to strike him with a club and throw him off the train if he refused to pay Louraine fifty cents? A. Yes.

"3. If you answer the foregoing question No. 2 'Yes,' did William Louraine threaten to throw Carl O. Bjorkman off and wave a club at him and order him off the train while it was running fast because Bjorkman refused to pay him said four bits? A. Yes.

"4. If you find in favor of the plaintiff, please state definitely what act or acts of negligence the defendant was guilty of which caused the injury to the plaintiff. A. He, William Louraine, defendant's brakeman, approached Bjorkman waving his club, and in a loud and abusive language ordered him from the moving train.

"5. If you find in favor of the plaintiff, please state: (a) What act or acts of willful, wanton, reckless or malicious negligence the defendant was guilty of; and (b) who was guilty of such act or acts of negligence which caused the injury to the plaintiff. A. (a) Wantonness on the part of Wm. Louraine, who approached the plaintiff waving his club in a threatening manner, ordering him from the moving train. (b) William Louraine.

"6. Did the brakeman, William Louraine, get on the locomotive as it was crossing Main street, or before it passes the freight depot in Great Bend, and remain on the locomotive until reaching Larned? A. No.

"7. Did conductor Robinson, rear brakeman Little, engineer Arnold and fireman Robohn see William Louraine get on the locomotive as it was moving between Main street and the freight house? A. No.

"8. Did William Louraine, brakeman, after getting on the locomotive at Great Bend, fire the engine for fireman Robohn from about a mile from Great Bend to Larned? A. No.

"9. If the jury find for the plaintiff, state how much actual damages you award him. A. $ 14,750.

"10. If the jury find for the plaintiff, and further find that he is entitled to punitive damages, state the amount you award him? A. $ 6,333."

Judgment was rendered for the defendant on the theory that the brakeman had no authority to demand or collect fifty cents, and that the brakeman compelled the plaintiff to jump from the train in revenge for his refusal to pay; that the brakeman was not acting within the scope of his authority. The defendant admits that it is a part of the brakeman's duty, on a freight train, to eject trespassers, and that, if in line of his duty in doing so, he compels one to jump from a train that is moving so rapidly as to make the act dangerous, and injuries result, the defendant would be liable. It contends, however, that the plaintiff was not ordered from the train because he was a trespasser, but solely because he would not submit to the "graft" exactions of the brakeman; that, therefore, the brakeman was not acting within the scope of his authority.

On the other hand, the plaintiff contends that it was not the demanding of the fifty cents and the refusal of the plaintiff to pay it that caused the loss of the plaintiff's leg, but that it was the brakeman's waving his club, his threat to strike the plaintiff with his club, and the brakeman's threat to knock the plaintiff off the moving train.

In K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 Kan. 655, 14 P. 172, it was said:

"Where a boy fifteen years old gets upon a freight train wrongfully, and as a trespasser, for the purpose of riding without paying his fare, and is commanded by the brakeman to jump off the train while in dangerous motion, in the night-time, and in obedience to that command, and in fear of being thrown off, jumps off the train and is run over and injured, the company is liable." (Syl. P 1. See R. R. v. Gants, 38 Kan. 608, 621, 625, 17 P. 54; R. R. v. Whipple, 39 Kan. 531, 540, 18 P. 730.)

"It is within the scope of the general authority of a brakeman on a freight train to prevent trespassers from getting on the train, and to remove such persons who wrongfully get thereon; but if in so doing he does not exercise care and caution, but acts wantonly or maliciously, and an injury results, the railroad company is liable." (Syl. P 2. S...