Giersch v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 09 March 1918
• Docket Number: 21404
• Citation: 171 P. 591
• Parties: GIERSCH v. ATCHISON, T. & S. F. RY. CO.[*]
• Court: Kansas Supreme Court

171 P. 591

GIERSCH v. ATCHISON, T. & S. F. RY. CO.^[*]

No. 21404

Supreme Court of Kansas

March 9, 1918

Syllabus

The evidence examined, and found to support the findings of the jury.

The record examined, and held to disclose no substantial error as to the merits of the case.

Under the federal Employers’ Liability Act (Act Cong. April 22 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, § 8662]) § 6, the cause of action accrues within two years from the date of the death of the deceased, and a personal representative appointed more than two years from such date cannot maintain an action.

The widow brought her action under the state statute and recovered a judgment which was reversed. When reached the second time for trial, leave was given to amend by interlineation by increasing the amount of recovery prayed for and by the allegation of the widow’s appointment as administratrix and by striking out the former allegation that no administration had been had nor any personal representative appointed. The plaintiff’s intestate was killed more than two years before this time while engaged in interstate commerce. Held, that the statute of limitations had run, and that the plaintiff as administratrix cannot recover.

Appeal from District Court, Lyon County.

Action by Jessie Giersch, administratrix of the estate of Charles M Giersch, deceased, against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with direction to enter judgment for defendant.

Johnston, C. J., and Mason, J., dissenting.

W. R. Smith, O. J. Wood, and A. A. Scott, all of Topeka, for appellant.

W. S. Kretsinger and Hamer & Ganse, all of Emporia, for appellee.

OPINION

WEST, J.

When this case was first here, we held that the action could not be maintained by the widow. 98 Kan. 452, 158 P. 54. Thereafter the plaintiff was appointed administratrix and as such was substituted as plaintiff. Leave was granted to amend the petition by interlineation. The jury returned a verdict against the defendant for causing the death of the plaintiff’s intestate. The defendant appeals and contends that the action is barred, also that the judgment ought to be reversed, urging in its brief that the evidence did not support the charge of negligence and that the principal findings are contrary to the evidence.

As to the merits, the claim of the plaintiff is that the deceased, a switchman, went in behind a slowly moving flat car, which had been separated from a number of others and switched upon a certain track, to adjust the knuckle so that it would couple properly, and that the train, which had stopped, started up without warning and ran against him crushing him against the drawbar of the flat car.

It is insisted that there is no evidence that the train had come to a stop. This record does not bear out such a contention.

Mr. Wilhite testified, among other things:

"At the time Mr. Giersch was adjusting or working on that knuckle, the main train had stopped. *** The main train did not remain standing during all the time he was working on this knuckle."

On cross-examination:

"The cars behind him had stopped. I seen them. There was nothing between me and that train to prevent me from seeing these cars. I should judge the cars following had stopped stock-still. They did not remain stopped very long. I don’t know how long. I saw him in there a space of 10 or 15 seconds before he was hit. The cars had stopped possibly 2 or 3 seconds before that."

On redirect examination:

"I said that after he had walked along there behind that car and was working with the knuckle the train stopped, came to a dead stop, and then when it started it moved gradually down."

Mr. Sterner testified:

"He was following the flat car and working the knuckle with his hands. The train had stopped, well, I will say momentarily, as though the engineer has set the air and released it."

On cross-examination:

"I couldn’t see the engine that was pushing this string of cars on account of some way-cars, that were on the way-car track between me and the engine. I could not tell as to whether the engine stopped or not. I did notice the slacking or stopping of the cars up at the east end of this string of cars."

Mr. Anderson for the defendant testified:

"Unless a man was paying very particular attention, he could be fooled by this rebound. He might have thought they had stopped when they hadn’t."

On cross-examination:

"It fooled me, too, and I don’t say now whether it stopped or not."

Again:

"After that car was uncoupled from the train, that train was either so slacked up that I could not tell whether it entirely stopped or not, or it did actually stop; one or the other."

From the counter abstract:

Mr. Wilhite: "Q. If I understand you correctly, you say after he had walked along there behind this car and was working with the knuckle, the train stopped-came to a dead stop? A. Yes, sir."

Mr. Sterner: "Q. I will ask you if you did not state in your former testimony, if you did not unqualifiedly say that the train had stopped, for the purpose of refreshing your memory? A. Well, I believe it had come to a stop-a complete stop."

While there was evidence to the contrary and also evidence tending to show that the stop was merely the action of the train in taking up slack, the statements of witnesses already quoted seem to have impressed the jury as correct, and they are sufficient to sustain the verdict and findings as to the question of stopping.

The jury found that the switch engine handling the cars stopped after Mr. Giersch cut off a flat car and before the stop signal was given by the foreman. They found that the other switchman and the foreman did not signal the engineer to stop immediately after the deceased had stepped between the cars; that the switchman shouted, but not immediately-too late to avoid injury. The allegation was that the foreman in charge and other employés knew or should have known that the deceased was adjusting the knuckle of the flat car and was not in a position where he could observe the danger, and that the foreman carelessly and negligently caused the train to again come forward without warning to the deceased. The jury found that the negligence consisted in starting the train and pushing it forward without warning after the flat car was cut off, and that the foreman and another employéwere the ones immediately negligent. They also reduced the damages from $10,000 to $7,916.66 on account of the negligence of the deceased. The foreman himself testified that he had control over the way the men did their work; that he knew the position of the deceased; that he was looking at him all the time and could not be mistaken.

The switchman whom the jury found to have been negligent testified that he turned the pin puller over to Mr. Giersch, or the lever, and stopped so that he could give the signal to the foreman.

"The only signal I intended to give was that when that track was shoved far enough they would stop; that is what I was doing at that time. In this case we were shoving the cars. When you kick in you give them a kick off and let them go."

He further testified that as the gap opened up Mr. Giersch stepped around the end of the car.

"I suppose I was in sight of the foreman. The foreman was keeping in line with me. He was behind me. He was looking towards me. It was not necessary for me to turn around to face him to give the sign. The engine stopped once on my stop signal. It did not start again before Mr. Giersch was hurt."

"When a man is in there adjusting a knuckle, it is not his duty to give any signal. He cannot give any signal. I am not positive whether the train stopped or not."

The theory of the defense seems to be that Giersch went in between moving cars knowing full well the danger of so doing, and that it was his own negligence, and not the negligence of those over him, which caused the injury. The plaintiff’s theory is that he went where it was his duty to go at a time when it was safe, having a right to rely on the supposition that the train would remain stopped or sufficient warning would be given before starting again, and that by reason of the starting and failure of warning he was crushed.

Out of the usual evidential conflict the jury reached their conclusions, and the record fails to show that they were unwarranted in so doing. We find nothing in the record of which the defendant can complain as to the merits of the action.

The death occurred on December 28, 1913, the widow began her action on February 20, 1915, and obtained a judgment which was reversed June 10, 1916, and on July 19th, thereafter, the court permitted an amendment to the petition and the substitution of the plaintiff as administratrix for herself as widow. Her appointment as administratrix was on July 10, 1916. The amount prayed for was increased from $10,000 to $20,000, but subsequently changed to its original amount. Section 6 of the federal Employers’ Liability Act, 35 St. at Large, 65 (U. S. Comp. St. 1916, § 8662), provides that:

"No action shall be maintained under this act unless commenced within two years from the day the cause of action accrued."

It also provides that in case of the death of an employéthe carrier shall be liable to his or her personal representative for the benefit of the survivor, widow or husband and children of such employé .

In the former opinion it was held that the testimony brought the case under the federal act exclusively, although it was not alleged in the original petition that the parties were engaged in interstate commerce. It is contended that the change by amendment and substitution was a change "from law to law" which cannot be more than two years after the...