Chorn v. Missouri, Kanas & Texas Railway Co.
| Decision Date | 03 February 1913 |
| Parties | LEWIS M. CHORN, Respondent, v. MISSOURI, KANAS & TEXAS RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Cooper Circuit Court.--Hon. John M. Williams, Judge.
AFFIRMED.
Judgment affirmed.
W. G. & G. T. Pendleton and Lee W. Hagerman for appellant.
S. C Major and Roy D. Williams for respondent.
--Plaintiff's action is for damages on account of personal injuries received, as he alleges, by reason of defendant's negligence. He recovered judgment in the circuit court.
In the month of December plaintiff shipped a lot of mules on defendant's road from Fayette to St. Louis, Missouri. An acquaintance named Davis shipped mules on the same train. The train, or at least the cars in which the mules were, were to become a part of a St. Louis freight train at a station called New Franklin, not far from Fayette the starting point. They arrived at New Franklin about four o'clock in the afternoon, where they were put on a side track to await the St. Louis train. The point where the cars with the mules stood, was about half way between the New Franklin station house and defendant's turntable where plaintiff was hurt, the distance between the turntable and the station being about one mile. On arriving at New Franklin the conductor told plaintiff he should ascertain from the station agent or yard master when the St. Louis train would come in, saying to him: After assisting a mule, which had hurt his foot, in the car door, plaintiff and Davis went down to the station to ascertain from the agent when the St. Louis train would come in. They were told by him that he could not say until later. They then had supper and returned to the agent, who said their train would not get in until about ten o'clock. Later he informed them it would not come in until after eleven and a little later said it would be after twelve o'clock. Plaintiff and Davis then thought they would walk back to the car to see how the injured mule was getting along. They saw a switch engine and the crew which was to take charge of the incoming train when it arrived, start towards that part of the yards where their caboose would most likely be placed, and they followed to a restaurant at what is known as Franklin shops and which is used as a shelter and depot for train crews and passengers who may be at that place. Here the crew, Davis and plaintiff waited for nearly an hour, when, at about one o'clock the crew left, stating they were going to make up a train. They went in the direction of plaintiff's mules and where the caboose was afterwards placed, it being the direction the conductor had said he would catch the caboose. Plaintiff, without a lantern followed along the same path, which was about seven feet wide. The pit of a turntable had been dug three feet into this path and several feet deep. It was unlighted and there were no guard rails, so that plaintiff, having no knowledge of the danger, fell into it and was injured. He had known of the turntable, but had never examined it. It was shown by several stock shippers that they had always been told to get into the caboose at about the point plaintiff was directed; and it further appeared that plaintiff was informed that the caboose would not stop at the station and he therefore could not get into it at that point.
There is considerable said by the parties as to distances and directions from one to another of the many points which were gone over in the testimony. At this stage of the case these things are of no particular importance. The substantial matter is, that defendant's arrangement of things at its yards at this transfer point for St. Louis live stock freight, which is always accompanied by persons in charge, is such that in order to take the caboose in which these persons must ride, it is necessary to go over or through the yards. In this instance the St. Louis train which was to convey the stock to St. Louis was many hours late. This naturally caused plaintiff and his companion to leave the car and go to the station. They could not of course be expected to stand out...
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