Ergenbright v. St. Louis, I.M. & S. Ry. Co.

• Decision Date: 10 February 1917
• Docket Number: 20653
• Citation: Ergenbright v. St. Louis, I.M. & S. Ry. Co., 163 P. 173, 99 Kan. 765 (Kan. 1917)
• Parties: ERGENBRIGHT v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Kansas Supreme Court

163 P. 173

99 Kan. 765

ERGENBRIGHT v. ST. LOUIS, I. M. & S. RY. CO.

No. 20653

Supreme Court of Kansas

February 10, 1917

Syllabus by the Court.

Upon the testimony it is held that the defendant was engaged in business in Kansas, and that a valid service of summons was made upon its agent.

A railroad company is not primarily liable for the negligence of a postal agent in throwing mail sacks from a moving train but may become liable where it knowingly permits such agent to continue a custom or practice of delivering mail sacks at a station in such a way as to endanger those who may be lawfully at the place of delivery, without doing what it can to prevent the continuance of the negligent practice.

The evidence in the case does not support the findings of the jury that the defendant was negligent in knowingly permitting the United States postal agents to pursue a dangerous practice in discharging the mail sacks from the mail car at a station, and in failing to report a reckless discharge of the mail to the proper authorities.

Appeal from District Court, Montgomery County.

Action by Charles S. Ergenbright against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded for new trial.

W. P Waggener, of Atchison, S. H. Piper, of Independence, and J M. Challiss, of Atchison, for appellant.

O. P. Ergenbright and T. S. Salathiel, both of Independence, for appellee.

OPINION

JOHNSTON, C. J.

This action was brought by Charles S. Ergenbright against the St. Louis, Iron Mountain & Southern Railway Company to recover for personal injuries sustained while he was in the service of the company. The jury returned a verdict in favor of plaintiff for $5,000, and from the judgment thereon the defendant appeals.

The first contention is that jurisdiction of the defendant was not obtained by a valid service or other means. It appears that the defendant had a line of railroad which extended into Kansas a distance of two miles to the city of Coffeyville. In 1909, the company entered into an arrangement with the Missouri Pacific Railway Company for the transfer to the latter of that part of the road which extended into Kansas. Afterwards it ceased to file reports with the secretary of state and its right to transact business in the state was finally revoked on July 21, 1914. The injury occurred on July 30, 1914. There was testimony in behalf of the defendant to the effect that in the accounting of business, as between the defendant and the Missouri Pacific Railway Company, the line of division was at the state line; that each was a separate and distinct organization; and that W. H. Tester on whom the service of process was made was the agent of the Missouri Pacific Railway Company and not of the defendant. Other testimony, however, was to the effect that in dealing with the public Tester was held out by the defendant as its agent. In the folders, time cards, and advertising matter issued by the defendant, Tester was represented as its agent at Coffeyville. He testified that he acted for the defendant as well as the Missouri Pacific Railway Company in selling tickets and issuing bills of lading, and that his duties as agent were substantially the same after the transfer of the property to the Missouri Pacific Railway Company as they had been before that time. The trains of the defendant were run through from Van Buren, Ark., to Coffeyville, without a break or change of control at the state line, and it appears that the trains were operated in Kansas by the defendant and that it actually did business there. The questions whether or not the defendant was doing business in Kansas and whether or not Tester was its agent were issues of fact which were determined by the court, and it is reasonably clear that there was testimony to support the finding of the court that due service had been made.

The principal contention is that the evidence did not support the charge of negligence made against the defendant, and that there was no basis in the evidence for the verdict of the jury. It appears that the plaintiff on the night of his injury was employed as a brakeman on a freight train of the defend ant which had taken the siding at Oolagah, Okl., to allow passenger and mail train No. 119, southbound, to pass. The tracks run north and south, and the station is located west of the tracks, and has a platform, at the north end of which a mail crane stood, the latter being about 75 feet north of the station building. The plaintiff, after having crossed over the tracks at a point nearly opposite the north end of the platform, was walking northward along the west side of the main track toward a switch about 800 feet distant, which he intended to throw after the passenger train had passed, when he was struck near the neck and shoulders by the mail sacks thrown out of the mail car of the passenger train which was moving at the rate of about 50 miles an hour. The mail sacks were discharged, and the plaintiff was found about 60 feet north of the crane, with his feet about 10 or 12 feet west of the rails. The plaintiff alleged that the postal employés had been in the habit of throwing mail sacks out at the station in a negligent manner, and that with the knowledge of this practice the defendant had permitted it to continue for a long time. The night operator at the station who had been employed about eight months testified that it was his duty to go out after the mail train had passed and bring in the mail sacks, and among other things stated:

"I think I have found sacks west of the ditch or depression I have spoken of in the weeds. Not very many times. Three, four or five times; not over six, I don’t think."

The ditch mentioned was a flat sloping depression about 10 or 12 feet wide extending along the west side of the track for drainage, and beyond this depression on the higher ground were some grass and weeds. The operator had told the agent that he had difficulty in finding the sacks. The postal employés testified that it was their duty to throw the sacks downward and outward just before reaching the crane upon being warned by three blasts of the whistle, and that it was good practice if the sacks could be thrown within a distance of 60 feet of the crane, depending somewhat on the speed of the train. There was testimony that the bottom of the car would be about 4 feet from the ground, and about on a line with a man’s shoulder; that to throw the sacks 30 feet from the track would not be good practice; and that as the rule required that the sacks be thrown downward and outward it would not be good practice to throw them 12 feet...