Ft. Scott

• Decision Date: 06 April 1895
• Citation: 39 P. 1032,55 Kan. 288
• Court: Kansas Supreme Court
• Parties: THE FORT SCOTT, WICHITA & WESTERN RAILWAY COMPANY et al. v. J. H. SPARKS

39 P. 1032

55 Kan. 288

THE FORT SCOTT, WICHITA & WESTERN RAILWAY COMPANY et al. v. J. H. SPARKS

Supreme Court of Kansas

April 6, 1895

Error from Harvey District Court.

ON the 13th day of July, 1883, J. H. Sparks commenced his action against the Fort Scott, Wichita & Western Railway Company and the Missouri Pacific Railway, Company to recover $ 50,000 for personal injuries which he alleged resulted to him from the negligence of the companies. Trial had, at the February term of the court for 1890, before the court with a jury. On the 3d day of March, 1890, the jury returned a verdict in favor of the plaintiff and against the defendants for $ 10,000, and also made special findings of fact in writing. On the 3d of March, 1890, the railway companies filed their motions for judgment in their favor upon the special findings of the jury notwithstanding the general verdict. These motions were overruled. Thereupon the railway, companies filed their motions for a new trial containing the usual statutory grounds. These motions were heard on the 20th of May, 1890, and overruled. Thereupon the court rendered judgment in favor of J. H. Sparks and against the railway companies for $ 10,000, with costs taxed at $ 382.64. The Railway Companies excepted, and bring the case here.

Judgment reversed and cause remanded.

J. H Richards, and C. E. Benton, for plaintiffs in error.

J. D Houston, and W. H. Boone, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The Fort Scott, Wichita & Western Railway Company, on the 18th day of May, 1888, made a written contract with J. H. Sparks to transport eight car-loads, consisting of 107 head of cattle and 75 hogs, from Conway Springs, in this state, via Kansas City, Mo., to Chicago, Ill., and to carry Sparks on the train in which his stock was taken. The contract was signed by Sparks and C. M. Stewart, the agent of the railway company, in duplicate. One was delivered to Sparks prior to the shipment of the stock and the other was retained by the agent of the railway company. The contract contained the following provisions:

"For the consideration aforesaid, the said second party hereby further agrees that the said persons in charge of said stock under this contract shall remain in the caboose-car attached to the train while the same is in motion, and that whenever such persons shall leave the caboose-car or pass over or along the cars or track they shall do so at their own risk of personal injury from every cause whatever, and that the said first party shall not be required to stop or start its trains or caboose-cars from depots or platforms, or to furnish lights for the accommodation or safety of such persons."

At the date of the contract the stock was shipped from Conway Springs, and Sparks had accompanying him James M. Harper, J. A. Fowler, J. C. Dudley, and R. F. Hargrove, as attendants of the stock. The train consisted of 11 cars of stock, a caboose, an engine, and tender. Between Conway Springs and El Dorado, Sparks and his men rode in the caboose-car, attached to the train, arriving at El Dorado, in this state, the end of a division, about 8 o'clock P. M. on the 18th. The train stopped at the station, with the engine at the water-tank. Sparks was a regular shipper of stock over the road, and had general knowledge of the depot and yards at the station. Before their arrival at El Dorado, Sparks and his men were notified that they would have to change cabooses. Sparks got out of the caboose after the train had come to a full stop, and started with Harper and their luggage for the outgoing caboose. After the arrival of the train at El Dorado, the incoming caboose was detached from the train and placed on to a switch north of the main track. The outgoing caboose was located on a switch south of the main track, and 400 to 500 feet from the point where the incoming caboose stopped. This caboose had a red light on the outside at its west end. There was only one track--the main track--between the incoming caboose and the outgoing caboose. There were no switch-engines or trains moving at the time in the yards at the station, except the train carrying Sparks's stock. Main street, near the passenger depot, and not far from where the west end of the stock-train stopped on its arrival at the station, was lighted by an electric arc-light, and there was light at the depot and other parts of the yards. The direction of the outgoing caboose pointed out to Harper, who was with Sparks. The latter, with Harper, walked eastward in the direction of the outgoing caboose from 200 to 300 feet. This caboose was from 200 to 300 feet further east. While proceeding on their way in the direction of the outgoing caboose, they came up to the main stock-train. They mounted with their luggage to the top of nearest car, directly after which they, together with the other three attendants, were transferred to the point of the outgoing caboose. They got on the top of the stock-car about four minutes after leaving the the incoming caboose. James M. Harper, a witness for plaintiff below, testified, among other things, as follows:

"Ques. If any one suggested that you get on top of the car that you did finally get onto, who made the suggestion to get up there? Ans. Mr. Sparks.

"Q. State fully how he came to make the sugges-tion--the circumstances of it? A. That if we got on top of the car in which the stock was loaded we would run no chance of being left, and he was not certain as to the caboose we were to get into.

"Q. I will ask you to state if you didn't insist on going and getting into the caboose? A. There was an argument--a little controversy--between Mr. Sparks and me, as to what caboose we would get into. I was going to the caboose myself, and he said to get on the train and we would not be left.

"Q. What car did you get onto? A. A car belonging to the Missouri Pacific.

"Q. Where was this car? A. This car was east of the caboose which we were on.

"Q. How far east? A. Well, I should judge about a block and a half--a block, possibly.

"Q. What did Mr. Sparks do after you got on top of the car? A. Mr. Sparks went on ahead to look after the cattle just immediately after we got on

"Q. When the train was backed back on to the caboose, where was Mr. Sparks? A. He was on top of the box car.

"Q. And when you climbed onto it? A. Yes, sir. "Q. How many persons up there at that time? A. I am not certain whether all five were up or not on top of that box car.

"Q. What did you do immediately after the train was coupled onto the caboose? A. We put our provisions into the caboose--provisions and luggage.

"Q. How did you do that? A. We handed them down from the top of the car to a person standing at the end of the caboose, receiving them into the caboose.

"Q. What did you do next--what did Mr. Sparks do? A. He went forward to look after the cattle.

"Q. After you had backed up to the caboose or before? A. I think after we had backed on to the caboose; but, however, I am not certain on that point.

"Q. When you had gotten your luggage down, what did you do next? A. We got on top of the caboose. We were getting into the caboose, or went to get in at the top.

"Q. Mr. Sparks was on top of the caboose at this time? A. Yes, sir.

"Q. What became of Mr. Sparks? A. Mr. Sparks was knocked off.

"Q. By what? A. By the bridge.

"Q. What part of the bridge? A. The west end of the bridge.

"Q. What part of the west end? A. The south part of the west end.

"Q. What was that--what was there? A. The framework of the bridge.

"Q. Was there a brace there? A. Yes, sir.

"Q. What struck him? A. I think it was the brace.

"Q. What became of him when he was knocked off? A. He fell down on the framework of the bridge."

Sparks testified, among other things, as follows:

"Q. Did you have a conversation with Mr. Harper about getting upon that cattle-car, and didn't he tell you that he wanted to go on the caboose? A. I don't remember whether he did or not; I think I had some conversation with him, no doubt.

"Q. And he wanted to go on down to the caboose? A. Yes, sir.

"Q. And you said, 'No; we'll get upon the box car, and then we will be sure to find our car?' A. Yes, sir.

"Q. And then you got upon top of the box car. Did you get up immediately after this conversation was had? A. Yes, sir.

"Q. How soon after this conversation was had before you got up? A. I don't remember just how long; I suppose it was done quick, of course.

"Q. Well, about how long after this conversation was it that you got upon this box car--how long before you went to get up? A. I couldn't scarcely form an idea what length of time, or what the conversation consisted of.

"Q. Don't you remember, before going on the train, of the employee telling you that before you got there there would be a caboose waiting? A. I don't remember their telling us but I knew they had to have a caboose to take us on.

"Q. Well, don't you remember of their telling you that? A. I don't remember it. A man wouldn't have to ask that question.

"Q. You knew there was always a caboose there to take you on? A. Yes.

"Q. And that the caboose was generally on the house-track? A. Yes, sir; on the east end.

"Q. On what is called the 'house-track?' A. I don't know about the track.

"Q. Well, it is a track that runs from the back of the depot on the south side of the yard. A. I couldn't say; I hadn't time to locate the depot.

"Q. You had been there frequently? A. Yes, sir. "Q. You knew the ordinary distance between these cabooses? A. Yes; I knew about how long the switches were.

"Q. After you got on top of that car, what became of you? A. Well, they handed down the luggage--some of the other fellows--and went in, and I and another party heard a number of hogs...