Cole v. The Atchison

• Decision Date: 11 April 1914
• Docket Number: 18,780
• Citation: 92 Kan. 132,139 P. 1177
• Court: Kansas Supreme Court
• Parties: PAUL D. COLE, by his next friend, etc., Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

139 P. 1177

92 Kan. 132

PAUL D. COLE, by his next friend, etc., Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 18,780

Supreme Court of Kansas

April 11, 1914

Decided January, 1914.

Appeal from Cowley district court; CARROLL L. SWARTS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES--Interstate Commerce--Within Purview of Federal Employer's Liability Act. An act of congress regulating interstate commerce and fixing the liability of common carriers engaged in that commerce to their employees is supreme and exclusive and supersedes state legislation on the same subject, and whether the federal or the state law is applicable in any case depends on whether the employer and employee were engaged in interstate commerce when the injury was sustained by the employee.

2. TRIAL--Material Question of Fact--Submission to Jury. Either party is entitled, upon request, to have the court submit to the jury an important question of fact which is within the issues in the case and is based upon competent evidence.

3. NEW TRIAL--Inconsistent Special Findings. A new trial should be granted where important special findings of fact made by the jury are inconsistent with each other and with the general verdict returned by it.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka, for the appellant.

Alfred M. Jackson, Albert L. Noble, both of Winfield, and Charles T. Atkinson, of Arkansas City, for the appellee.

OPINION

JOHNSTON, C. J.

The appellee, Paul D. Cole, a minor, by his next friend, George W. Cole, brought this action against appellant, The Atchison, Topeka & Santa Fe Railway Company, to recover damages for injuries suffered in falling from the top of a refrigerator car. It appears that Cole was employed by appellant as a clerk at its station at Anthony. As a part of his duties it appears that he was to oversee the sealing of cars, and that on or about Thursday, October 5, 1911, in company with another workman was engaged in sealing vent doors on the top of refrigerator cars. About thirty cars were to be sealed each day, and on the day in question a string of the cars were so coupled that next to the one on which appellee was standing and from which he fell was a furniture car the top of which was about two and one-half feet higher than the top of the refrigerator car. It was about seven o'clock in the evening and darkness had fallen. It appears that part of these cars were bound for points in Oklahoma and that others on which appellee had worked had either come from or were bound to Oklahoma points. Appellee was standing about five feet from the end of the refrigerator car in a stooping posture holding a lantern to enable his companion to properly seal the vent door, and while in this position another car was shunted against the string with such force that appellee was thrown to the ground. Appellee sustained injuries alleged to be permanent in their nature and for which he asked damages in the sum of $ 5000. At the trial the jury returned a general verdict in favor of appellee and special findings of fact in which it was found that he was damaged in the sum of $ 3000, but that by reason of his own negligence, which contributed to the injury, the amount was reduced one-half and he was awarded the sum of $ 1500. Appellant alleged and claimed that the injury was the result of appellee's negligence in that the sealing of the cars should have been done in the daytime while he chose to do it in the nighttime; also that he was aware of the fact that trains were switching in the yard and took no precaution to notify the switching crews of his presence on the cars and did nothing to protect himself, and, further, that the appellant had been released from any claim for damages on account of the injury.

The first claim of error is that appellee was permitted to recover under the state statute when he had alleged and proven a cause of action under the federal law. The petition of appellee does state that the appellant was engaged in interstate commerce and that the refrigerator cars which were being sealed were used in interstate traffic. At the opening of the trial a question arose as to whether appellee was seeking a recovery under the federal or the state law, and appellant asked that the appellee be required to elect under what law he was proceeding. The court held that he was not compelled to make an election, but that he was bound to prove the cause of action alleged in his petition, which, it was stated, appeared to be a cause of action under the federal law. On the conclusion of appellee's testimony a demurrer to his evidence was filed, and the court ruled that the evidence introduced was not sufficient to show that appellee was engaged in interstate commerce at the time of his injury. Appellee then asked and obtained permission to offer further testimony on that issue, and the testimony offered showed quite clearly that the cars which were being sealed were being used in interstate traffic. The court, however, ruled that the proof was insufficient to prove a liability under the act of congress, but that it was sufficient to go to the jury under the employers' liability statute of Kansas. It appears that appellant was insisting in the district court that...