Flanigan v. Hines

• Decision Date: 11 December 1920
• Docket Number: 23,111
• Citation: 193 P. 1077,108 Kan. 133
• Court: Kansas Supreme Court
• Parties: URA FLANIGAN, as Administratrix, etc., Appellee, v. WALKER D. HINES, as Director General of Railroads, operating Missouri, Kansas & Texas Railway Company, Appellant

193 P. 1077

108 Kan. 133

URA FLANIGAN, as Administratrix, etc., Appellee, v. WALKER D. HINES, as Director General of Railroads, operating Missouri, Kansas & Texas Railway Company, Appellant

No. 23,111

Supreme Court of Kansas

December 11, 1920

Decided July, 1920

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Recovery Under Federal Liability Act--Injury Must Have Been Received While Engaged in Interstate Commerce. In order that there may be recovery under the Federal employers' liability act (35 U.S. Stat. 65, ch. 149, § 1) of damages resulting from death of a railroad employee, the injured person as well as the carrier must have been engaged in interstate commerce when the injury occurred.

2. SAME -- Federal Safety-appliance Act -- Assumption of Risk -- Contributory Negligence. Under the Federal safety-appliance acts an employee does not assume risk of injury from a car not equipped as the statutes require; but the defense of contributory negligence remains untouched, even by the act of 1910 (36 U.S. Stat. 299, ch. 160, § 4), and an employee is not relieved from taking ordinary care for his own protection in dealing with such a car.

3. SAME--Action May Be Predicated on Both Employers' Liability Act and Safety-appliance Acts. An action to recover damages resulting from death of an employee may be predicated on both the employers' liability act and the safety-appliance acts, and the plaintiff may go to the jury on as many grounds of recovery as the evidence tends to establish, under proper instructions as to each, without electing between the acts mentioned.

4. SAME--Certain Conductors' Reports Showing Defective Cars Were in Interstate Commerce Admissible. The action was one to recover damages resulting from death of a switching-crew foreman, who was killed while assisting in preparing a car lacking a drawbar for movement from the bad-order track to the repair track in the defendant's yards. The defendant was a carrier engaged in interstate commerce. The action was predicated in part on the employers' liability act, for violation of the safety-appliance acts. Held, conductors' reports of cars in freight trains and interchange reports of cars, showing the defective car was in course of transportation in interstate commerce, were admissible in evidence, under section 384 of the civil code.

5. SAME--Certain Inspector's Report Not Admissible. An inspector's report to the defendant, stating the condition of the car and certain facts attending the accident, as ascertained by the inspector after the accident, was not admissible in evidence.

6. SAME--Printed Rules and Settled Usages Concurred in by Employer and Employee Admissible. Printed rules of the carrier, settled usages of the particular yard established by concurrence of both employer and employees, and instructions given by the employer to employees, making for greater safety in handling the bad-order car, brought to the attention of the deceased, and violated by him, were admissible in evidence on the issue of contributory negligence.

7. SAME--Action Under Federal Safety-appliance Acts--Damages Not Governed by Kansas Workmen's Compensation Act. In an action predicated on the safety-appliance acts, the amount of damages recoverable is not governed by the workmen's compensation act of this state, under which the carrier has elected to operate.

W. W. Brown, O. T. Atherton, both of Parsons, and A. L. Berger, of Kansas City, for the appellant.

L. O. Carter, of Kansas City, W. W. McCanles, and S. L. Trusty, both of Kansas City, Mo., for the appellee.

OPINION

BURCH, J.:

The action was one to recover damages resulting from death of a switching-crew foreman, who was killed while assisting in preparing a defective car for movement from the bad-order track to the repair track, in the defendant's Glen Park yards. The plaintiff recovered, and the defendant appeals.

The defect in the car consisted in absence of a drawbar, which made it necessary to use chains to move the car. The accident occurred at night, and the deceased was killed while he was holding a lantern so that one of his brakemen could see to attach chains to the car for the purpose of moving it. The defendant admitted the railroad was a highway of interstate commerce. The plaintiff offered evidence tending to show the deceased was also engaged in interstate commerce when he was killed, but the evidence was rejected. The defendant offered evidence tending to show the deceased was guilty of contributory negligence, which caused his death, but the evidence was rejected. The allegations of the petition were such that recovery might rest on the Federal employers' liability act, or on the, Federal safety-appliance act. The court required the plaintiff to elect between the two statutes, and she elected to treat the action as one for recovery under the employers' liability act, for violation of the safety-appliance act. The court instructed the jury as follows:

"This action is brought and prosecuted by the plaintiff as administratrix of the estate of Martin Wilbur Flanigan, deceased, against the defendant, Walker D. Hines, as director-general of railroads, under and by virtue of an act of the congress of the United States, commonly called the Federal employers' liability act, for the purpose of recovering damages for the death of said Martin Wilbur Flanigan, claimed by the plaintiff to have been caused by the defendant or his predecessor in office as director-general of railroads, while the deceased under the direction of said director-general or his agents and employees was attempting to move a car, in violation of another act of the congress of the United States commonly known as the Federal safety-appliance act. By the terms of the last-named act it is made unlawful for any common carrier engaged in interstate commerce to haul, or permit to be hauled or used on its line, any car not equipped with couplers, coupling automatically by impact, and which could be uncoupled without the necessity of men going between the ends of cars; and said common carrier, engaged in interstate commerce, by the terms of said safety-appliance act, is held liable for the death or injury of any employee of said common carrier, caused to such employee by reason of or in connection with the movement or hauling of a car with equipment which is defective or insecure, or which is not maintained in accordance with the requirements of said safety-appliance act. It is admitted in this case that the defendant as director-general of railroads, and his predecessor in office, in charge of and operating the Missouri, Kansas and Texas railroad, was engaged generally in interstate commerce, and if the jury finds from the evidence in this case that said Martin Wilbur Flanigan was in the employ of the defendant, or his predecessor, W. G. McAdoo, as director-general of railroads, as a switchman, at the time of his death, and at said time was engaged, pursuant to his duties as said director-general's employee, in putting or assisting in putting a chain upon a freight car in the charge of and under the control of the defendant, or his predecessor in office, for the purpose of hauling said car upon the tracks of the Missouri, Kansas & Texas Railroad, then in charge of defendant's predecessor in office, and being operated by him, from a track known as the bad-order track, to a rip or repair track, and that said car upon which he was assisting in putting a chain was equipped with an automatic coupler, but that said coupler was defective or insecure, in that the drawbar in said coupling was missing, and that it was necessary to put said chain upon said car by reason of said drawbar being missing, in order to move it from said bad-order track to said rip or repair track, and that Martin Wilbur Flanigan's death was caused by reason as aforesaid, and that the defective condition thereof was the proximate cause of his death, then you are instructed that the plaintiff is entitled to recover in this action, and your verdict should be for the plaintiff."

It will be observed that the instruction eliminated, as an element of a cause of action under the employers' liability act, the fact that the deceased was engaged in interstate commerce. The employers' liability act reads in part as follows:

"Every common carrier by railroad while engaging in commerce between any of the several states . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . . by reason of any defect or insufficiency, due to its negligence, in its cars, . . ." (35 U.S. Stat. 65, ch. 149, § 1.)

The decisions are uniform and conclusive to the effect that it is indispensable to liability under this statute that the injured person should have been engaged in interstate commerce when the injury occurred. (Thornbro v. Railway Co., 91 Kan. 684, 139 P. 410; The Employers' Liability Cases, 207 U.S. 463, 52 L.Ed. 297, 28 S.Ct. 141; Second Employers' Liability Cases, 223 U.S. 1, 56 L.Ed. 327, 32 S.Ct. 169; Pedersen v. Del., Lack. & West. R. R., 229 U.S. 146, 57 L.Ed. 1125, 33 S.Ct. 648; Nor. Car. R. R. Co. v. Zachary, 232 U.S. 248, 58 L.Ed. 591, 34 S.Ct. 305; Ill. Cent. R. R. v. Behrens, 233 U.S. 473, 58 L.Ed. 1051, 34 S.Ct. 646; Minn. & St. Paul Ry. v. Popplar, 237 U.S. 369, 59 L.Ed. 1000, 35 S.Ct. 609; Chi., Burlington & Q. R. R. v. Harrington, 241 U.S. 177, 60 L.Ed. 941, 36 S.Ct. 517; Erie Railroad Company v. Welsh, 242 U.S. 303, 61 L.Ed. 319, 37 S.Ct. 116.)

The safety-appliance act may be related to an action under the employers' liability act. As the quotation from the employers' liability act...