Degitz v. Missouri, K. & T. Ry. Co.

• Decision Date: 08 April 1916
• Docket Number: 19930,20125
• Citation: 156 P. 743,97 Kan. 654
• Parties: DEGITZ v. MISSOURI, K. & T. RY. CO. [1] HAUSERMAN v. MISSOURI, K. & T. RY. CO.
• Court: Kansas Supreme Court

156 P. 743

97 Kan. 654

DEGITZ v. MISSOURI, K. & T. RY. CO. ^[1]

HAUSERMAN v. MISSOURI, K. & T. RY. CO. ^[2]

Nos. 19930, 20125

Supreme Court of Kansas

April 8, 1916

Syllabus

At a junction of two railroads a certain track owned by one of the railroad companies was designated as a transfer track, and was used by both companies for the purpose of the transferring of cars from one line to the other. Before a transfer was made an inspection by the receiving company was required, and it was the custom for the delivering company to place cars intended for transfer upon the transfer track. When they were so placed, they were supposed to be ready for inspection by the inspectors of the receiving company. The delivering company had notified the receiving company that an incoming train had a car of live stock intended for shipment over the line of the receiving company, which had a train going out shortly after the arrival of the train of the other company. When the train of the delivering company pulled into the yard, it placed three of the cars of the train apart from the others upon the transfer track. One of the three was not intended for transfer, and an effort was made to take it out at the north end of the transfer track, but that was found to be impracticable, and the three cars were then left together on the transfer track, where cars were customarily placed for inspection and transfer. Inspectors of the receiving company then proceeded to make an inspection of the stock car, one of the three so set apart. The engine of the delivering company was taken around on another track to the south end of the yard, and there attached to the remaining cars of its train, and without any signal or warning the train was pushed up with considerable violence against the three cars set apart, one of which was being inspected, and the collision resulted in killing two inspectors. In an action to recover for their death it is held that they are to be regarded as invitees, and that under the circumstances the delivering company was bound to anticipate that inspectors might be about the cars, and that reasonable care should have been exercised and reasonable warning given to them of the approach of the train before colliding with the cars so set apart; and whether the delivering company was guilty of negligence or whether the inspectors were guilty of contributory negligence were questions for the determination of the jury.

The evidence examined, and held to be sufficient to support the special findings made by the jury, which, in effect, held that the defendant was negligent, and that the deceased inspectors were not guilty of contributory negligence.

Appeal from District Court, Geary County.

Actions by Ida M. Degitz and Marian Hauserman against the Missouri Kansas & Texas Railway Company. From judgments for plaintiffs, defendant appeals. Affirmed.

W. W. Brown and James W. Reid, both of Parsons, and W. S. Roark, of Junction City, for appellant.

Arthur S. Humphrey and J. V. Humphrey, both of Junction City, for appellees.

OPINION

JOHNSTON, C. J.

Two actions were brought against the Missouri, Kansas & Texas Railway Company for damages, one for the death of Louis Degitz, the other for the death of Edward W. Hauserman, both employés of the Union Pacific Railroad Company, who were engaged at the time they were killed in inspecting a car which had been placed upon the transfer track of defendant in Junction City. The jury in each case rendered a verdict for the plaintiff, and also made certain special findings. The cases were tried separately, and, as both men were inspecting the same car and were killed by the same movement, the issues and the testimony in the cases were substantially similar. The appeals were argued together, and they may be disposed of in a single opinion.

Junction City is a terminal point of the Missouri, Kansas & Texas Railway, which enters the city from the south, and its main track, running north and south, connects with the main line of the Union Pacific. East of the north end of the Missouri, Kansas & Texas main track it has a switching yard composed of four side tracks running parallel to the main track and connected with the latter by means of two connecting tracks, one at the north running in a northwesterly and southeasterly direction, and one at the south running in a southwesterly and northeasterly direction. These were known as the north and south "leads," and the distance between them where they touched the main track was approximately 1,400 feet. A large proportion of the cars arriving on the Missouri, Kansas & Texas were consigned to points on the Union Pacific, and by an agreement between the two roads this part of the main track between the leads was designated as a transfer track where cars that were to be transferred to the Union Pacific were placed to be taken over by the latter road. It was the usual custom of the Missouri, Kansas & Texas to pull their trains in upon this transfer track, leaving the cars to be transferred near the north end of that track, then run the engine over the north lead to one of the side tracks, and go to the south end of the train, where it would switch out and place on the side tracks all the cars not destined to points on the Union Pacific. Before cars consigned to the Union Pacific were taken over by the latter they were always inspected by employés of that road, and whenever a car of live stock or perishable freight came in consigned to the Union Pacific the Missouri, Kansas & Texas would give the other road notice, so that the car could be inspected in time to get it started out promptly on the Union Pacific.

The accident in which Hauserman and Degitz were killed occurred about 10 o’clock at night on December 3, 1913. A Missouri Kansas & Texas train consisting of ten cars and caboose had arrived and was pulled upon the transfer track. A number of the cars were to be consigned to the Union Pacific, and that company had been notified during the afternoon that one of these cars in the train contained live stock. Three of the cars were cut off of the train and left up at the north end of the transfer track. The southernmost car of the three was not intended to be transferred to the Union Pacific, and it appears that the crew of the train undertook to place the third car on one of the side tracks by running the three cars up to the north lead, but they were unable to get in at that end, as there was not room for the engine and three cars to get past the north switch without encroaching upon the yard and tracks of the Union Pacific. Then the three cars were pushed back and left on the transfer track about 600 feet from the remaining cars of the train. The engine alone was then taken around by way of the third side track to the other end of the yard, and went in on the south end of the transfer track and coupled to the caboose, and the other cars of the train left at the south end. The train was then pushed north on that track and with considerable force against the three cars which had been left on the north end, including the car of live stock which was the northernmost of the three. When the engine left the three cars at the north end, the inspectors, Hauserman and Degitz, and an assistant named Fink, proceeded to inspect the live stock car, which it was anticipated would be picked up by the Union Pacific and attached to a train which was due to leave shortly after the arrival of the Missouri, Kansas & Texas train. On opening the boxes it was discovered that some packing was necessary, and Fink was sent for waste to...