Defenbaugh v. The Union Pacific Railroad Company

• Decision Date: 09 March 1918
• Docket Number: 21,328
• Citation: 102 Kan. 569,171 P. 647
• Parties: FRANK E. DEFENBAUGH, Appellee, v. THE UNION PACIFIC RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

171 P. 647

102 Kan. 569

FRANK E. DEFENBAUGH, Appellee, v. THE UNION PACIFIC RAILROAD COMPANY, Appellant

No. 21,328

Supreme Court of Kansas

March 9, 1918

Decided January, 1918.

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

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Evidence. There was evidence to support the plaintiff's allegation of negligence.

2. NEGLIGENCE--Unprotected Railroad Repair Shops--Injury to Employee. Under section 8545 of the General Statutes of 1915, a railroad is liable for the injuries sustained by a car repairer who is blown by the wind from the top of a car on which he is working, where the car is being repaired in regular shops, at a division point, on tracks exclusively used for repair work, and is not in or under any shed.

3. SAME--Car Repairer--Not Engaged in Interstate Commerce. A car repairer cannot be said to be engaged in interstate commerce while working on a car which has been used in such commerce and which, while being repaired, is empty and is not used in any kind of transportation, where it does not appear that the car is used exclusively in interstate commerce.

4. SAME--Contributory Negligence--Assumption of Risk. Under sections 8480, 8481, and 8482 of the General Statutes of 1915, neither contributory negligence nor assumption of risk is a defense in an action to recover damages for injuries sustained by a car repairer, under the circumstances described in the second paragraph of this syllabus.

R. W. Blair, T. M. Lillard, and A. M. Hambleton, all of Topeka, for the appellant.

Arthur J. Stanley, and Guy E. Stanley, both of Kansas City, for the appellee.

OPINION

MARSHALL, J.:

The defendant appeals from a judgment rendered against it in favor of the plaintiff for injuries sustained by him.

The plaintiff, a car repairer, was injured by being blown from the top of a freight car on which he was working. At the time of his injury the plaintiff was employed by the defendant in its regular repair shops in Kansas City, Kan., one of the defendant's division points. The car on which the plaintiff was working was standing on a track used exclusively for repair work, but was not covered nor enclosed by any shed. There were sheds connected with the repair shops, but the sheds were full, and there was no room in them for the car on which the plaintiff was working. The plaintiff was removing sheet metal from the roof of the car. After the metal had been loosened, a gust of wind caught it and blew it and the plaintiff to the ground. On the day the plaintiff was injured the wind was blowing from forty to forty-five miles an hour.

The petition alleged that the defendant was negligent in not having the car on which the plaintiff was working in a shed which could have been closed so as to prevent the wind from catching and blowing the metal roof off the car. Contributory negligence, assumption of risk, and that the plaintiff was engaged in interstate commerce at the time of his injury, were alleged as defenses.

1. The defendant's first contention is that there was no evidence to support the plaintiff's allegation of negligence. Section 8545 of the General Statutes of 1915 reads:

"It shall be unlawful for any railroad company or corporation or other persons who own, control or operate any line of railroad in the state of Kansas to build or repair railroad equipment at division points where shops are located without providing sheds, so constructed that they may be entirely enclosed, over the tracks exclusively used for such repair work, so that all men permanently employed for such repairs may be protected during storms or other inclement weather or from extreme heat: Provided, Nothing in this act shall relate to temporary repairs made at places other than regular shops."

The statute applied to the work that was being done by the plaintiff. The evidence supported the charge of negligence set out in the petition.

2. The defendant's second contention is that its negligence in failing to provide a shed for the repair track was not the proximate cause of the plaintiff's injury. The contention cannot be harmonized with the requirements of the statute. The wind was the direct cause of the injury to the plaintiff. If the statute had been complied with the accident would not have occurred. The purpose of the statute which has been quoted, is to protect employees from being injured by inclement weather of any kind--heat or cold, rain or snow, wind or storm. The statute was not complied with, and because it was not complied with the plaintiff was injured. Injury to an employee caused by inclement weather could have been foreseen by the defendant as a result of its failure to comply with the statute. The injury that did result was one of those that might have been thus foreseen. High winds occur frequently in this state, and metal roofs are often torn from buildings by such winds. A person working on a loosened metal roof of any structure during a high wind in this state is liable to be injured. The statute was intended to compel the defendant to guard against the thing that caused the plaintiff's injury. There was, therefore, causal connection between the violation of the statute and the injury to the plaintiff, and the defendant's contention cannot be sustained. Substantial support for the conclusion here reached is found in Fowler v. Enzenperger, 77 Kan. 406, 413, 94 P. 995; Caspar v. Lewin, 82 Kan. 604, 625, 109 P. 657; Casteel v. Brick Co., 83 Kan. 533, 537, 112 P. 145.

3. The defendant's third contention is that the plaintiff was employed in interstate commerce at the time of his injury. The car on which the plaintiff was working was an empty Union Pacific car. The...