Condiff v. Kansas City

• Decision Date: 10 January 1891
• Citation: 45 Kan. 256,25 P. 562
• Court: Kansas Supreme Court
• Parties: JAMES S. CONDIFF, as Administrator of the Estate of C. W. Condiff, deceased, v. THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY

25 P. 562

45 Kan. 256

JAMES S. CONDIFF, as Administrator of the Estate of C. W. Condiff, deceased, v. THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY

Supreme Court of Kansas

January 10, 1891

Error from Bourbon District Court.

ON the 6th day of September, 1887, James S. Condiff, as administrator of the estate of C. W. Condiff, deceased brought his action against The Kansas City, Fort Scott &amp Gulf Railroad Company to recover $ 10,000 damages for injuries received by Charles W. Condiff on the 3d day of November, 1885, from which injuries he died soon after. The railroad company filed an answer, denying generally the allegations of the petition, and also alleging "that if the intestate of the plaintiff was injured by defendant, the negligence of said intestate directly and proximately contributed to said injury." Trial had at the May term of the court for 1888, before the court with a jury. The jury returned a verdict for the railroad company. The plaintiff filed his motion for a new trial, which was overruled. He thereupon excepted to the rulings of the court and the judgment rendered, and brings the case here.

Judgment affirmed.

Ware Biddle & Cory, for plaintiff in error.

Wallace Pratt, and Chas. W. Blair, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Charles W. Condiff, deceased, was, on November 3, 1885, a section foreman on the line of the Kansas City, Fort Scott & Gulf Railroad. He had charge of a crew of five hands working section No. 32, between the villages of Arcadia and Mulberry, in Crawford county. The latter village was the headquarters of the foreman and crew, and the point from which they all started on the day named, on a hand-car, at seven o'clock A. M., to work on the track at the mouth of the cut where they had been engaged the day before. Besides the six men on the hand-car, there were dinner buckets, water pails, material, torpedoes, spikes, shovels, picks, and other tools. The distance that the party had to go was about five and a half miles, and there was a freight train--No. 33--south bound, due and behind time to be met. They knew that some place on the line, before arriving at their destination, they would probably meet this train, and on the route they stopped to listen for the train, not being able to hear it while the hand-car was in motion. The wind was from the south, blowing in the same direction they were going, which made it still more difficult to hear a train approaching them from the north. From the last stop their course, a distance of nine hundred and fifty-four feet, was over a bridge and a long trestle and dump or fill, on which it was not practicable to remove their hand-car and tools without pitching them down where they could not get the hand-car back, if at all, without great labor. From the last stop they proceeded over the bridge, trestle, and fill with great haste to their place of work, which was at the end of the fill and mouth of the cut, where there was a public roadway across the track. They heard and saw nothing of the train before the start over the bridge. They could make the nine hundred and fifty-four feet in about a minute. At the time they arrived at the crossing or point of work, they saw the train rounding a curve into the cut. This train consisted of an engine, tender, and a large number of empty freight cars. One of the witnesses of plaintiff testified that the hand-car was about ninety feet from the engine when he first saw it. Although he testified afterward that when they arrived at the place for work, he saw the train two hundred and fifty yards (or seven hundred and fifty feet) distant. The engineer testified that when he first saw the hand-car he was distant from it about one hundred and fifty feet, and that he saw it as soon as it came in line of vision; that he could not see it before because of the cut and curves on the line of the railroad. The hand-car was slacking speed at the crossing just as the crew saw the engine. The train was behind time, and was running rapidly on a slight up-grade through the cut. After the parties on the hand-car saw the engine they stopped it as soon as they could. After the hand-car was stopped Condiff gave the engineer of the train a signal to slow up. He then turned round (before this he had been facing the engine) and attempted, with the section men, to take the hand-car off the track. There did not seem time for this to be done, and Condiff told the men with him "to let loose the hand-car." The men let loose the car, left the track, and were uninjured. Condiff did not make any effort to get off the track. The engine struck the hand-car and injured him so that he died within a few days. When the engine struck the car it went up on the pilot under the head-light, and the tools were scattered along the track.

The plaintiff's theory is that the freight train was behind time; that it was running faster than the rules of the road permitted, in order to make up lost time; that it could have been stopped on the grade inside of four hundred and fifty feet; that the front brakeman was riding on the engine, where he had no business, and that the deceased lost his life in trying to save the property of the railroad company and the lives of its employes. The court refused to give the following instructions, which were asked by the plaintiff:

"1. If from the appearances, the deceased believed that by pushing the hand-car forward and getting it in motion he could avert a wreck of the train and probable loss of life consequent thereon, it was not negligence on his part to make the attempt, even though he believed that he might fail and receive an injury himself.

"2. Under the circumstances in which the deceased was placed, he was justified in using every prudent effort in his power to avert the wreck of the freight train and the loss of life that might result therefrom, and if he so acted and lost his life, he cannot be charged with negligence.

"3. It is not negligence in an employe to risk his life to prevent an accident that might be attended with loss of life to his coemployes and great destruction of his employer's property.

"4. Exposure of life by an employe to save life, is neither wrongful nor negligent, if attempted within the scope of an employe's duty.

"5. If from the circumstances it appears to you that the deceased believed he could save the wreck of the train and the probable consequence of loss of life and property, and acted in that direction, and in so acting lost his life, his acts in that regard cannot be considered negligent."

On the contrary, the court instructed as follows:

"If C. W. Condiff saw the train time enough before the collision, under the circumstances as detailed in the evidence, to get out of the way and avoid accident, then the failure, if any, to sound the whistle would not make the railroad company liable for his death.

"If Condiff saw the danger of possible collision before it took place, and could have saved himself by stepping off the track, but did not do so, the plaintiff cannot recover.

"The defendant in this case sets up that Condiff contributed to the injury by his acts and conduct. Now, if you find that the injury happened through his own fault, through his own carelessness or negligence in stepping or getting in front of the engine without using ordinary care or prudence, then he in that way contributed to the injury, and the plaintiff cannot recover in this case."

The important question,...