Hannibal & St. J. R. Co. v. Kanaley

• Decision Date: 10 March 1888
• Citation: Hannibal & St. J. R. Co. v. Kanaley, 39 Kan. 1, 17 P. 324 (Kan. 1888)
• Court: Kansas Supreme Court
• Parties: THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY v. JOHN KANALEY

17 P. 324

39 Kan. 1

THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY v. JOHN KANALEY

Supreme Court of Kansas

March 10, 1888

Error from Atchison District Court.

ACTION by Kanaley against.The Railroad Company, to recover damages for personal injuries.Judgment for the plaintiff for $ 5,000 was rendered on January 10, 1886.The defendant company brings the case here.The material facts are substantially stated in the opinion.

Judgment reversed and cause remanded.

B. F Stringfellow, and Strong & Mosman, for plaintiff in error.

Tomlinson & Eaton, and Thomas P. Fenlon, for defendant in error.

HORTON C. J.All the Justices concurring.

OPINION

HORTON, C. J.:

In 1884, the Hannibal & St Joseph Railroad Company--a corporation organized under the laws of the state of Missouri--operated its passenger trains to and from the union depot at Atchison; it also received and discharged passengers at the depot.The Union Depot Company owns the tracks from the bridge over the Missouri river to the depot.The Chicago & Atchison Bridge Company owns the tracks upon the bridge.The tracks of the Union Depot Company connect with the tracks of the bridge company.The Hannibal & St Joseph Railroad Company owns one-seventh of the stock of the Union Depot Company; the employes of the depot company are paid by the company, and the company renders an account to each railroad company for its proportionate share.The railroads, as stockholders, pay back the amount of operating expenses for each month.The proportion of the expenses paid by the Hannibal & St.Joseph Railroad Company for the employes of the Union Depot Company for 1884, was one-seventh.

John Kanaley, in September, 1884, was a fireman in the service of the Hannibal & St Joseph Railroad Company.On the evening of September 21, 1884, two extra freight trains of that company left Brookfield, Missouri, going east to Hannibal, Missouri.These trains were designated and known by the engines pulling them as numbers 67 and 68.Homer was conductor, Gilday engineer, and Kanaley fireman on No. 67.The running of all trains upon the road was supervised and directed by a train dispatcher in connection with a system of signals in use upon the road.Homer and Gilday, the conductor and engineer of train number 67, upon leaving Brookfield received the following order from the train dispatcher at that place:

"ORDER 85.

"BROOKFIELD, Sept. 21--C. & E. Eng. 67and 68: Eng. 67 will meet No. 11 at Lingo, and and engines 57 and 51 at Macon.Engine 68 will meet No. 11 at Bucklin, and No. 57 and 51 at Macon; both running to Hannibal and avoiding other regular trains.

[Signatures.]

2 T. S. B."

At Lingo there was a side track, and number 67 backed on this track and remained there some ten minutes or more The first section of No. 11 passed, going west, while No. 67 was on the side track No. 67 then pulled out, and after going about three-quarters of a mile a collision occurred at or near a place called Brush Creek, by No. 67 running into the second section of No. 11, which was following the first section of No. 11.At the time, Kanaley was shoveling coal; he dropped his shovel and jumped from the engine.He claims that he received severe personal injuries in jumping, to avoid being killed in the collision between the two freight trains.Subsequently, in an action brought by him in Atchison county, in this state, against the Hannibal & St.Joseph Railroad Company, he recovered judgment for five thousand dollars for his injuries.The railroad company complains of this judgment.First, it is contended that the trial court had no jurisdiction of the subject-matter of the action.

The statute provides:

"An action against a railroad company, or an owner of a line of mail stages or other coaches, for any injury to persons or property upon the road or line, or upon a liability as a carrier, may be brought in any county through or into which said road or line passes."(Civil Code, § 50.)

"Every railroad company or corporation, and every stage company, doing business in the state of Kansas, or having agents doing business therein for such corporation or company, is hereby required to designate some person residing in each county into which its railroad line or stage route may or does run, or in which its business is transacted, on whom all process and notices issued by any court of record or justices of the peace of such county may be served."(Civil Code, § 68a.)

It is clearly established by the evidence that the railroad company had arrangements with the Chicago & Atchison Bridge Company, owning the tracks upon the bridge over the Missouri river; and with the Union Depot Company, owning the tracks upon the Kansas side of the river, in Atchison county, for operating purposes.It ran its passenger cars into and out of the county of Atchison, receiving and leaving passengers at the union depot, in that county; and it is immaterial whether its possession and operation of the road or tracks in that county was as owner, or as lessee.Within the meaning of the law, its road, or line, passed into Atchison county; therefore this action was properly brought in that county, and the district court of that county had full jurisdiction.(A. T. & S. F. Rld. Co. v. Fletcher, 35 Kan. 236.)

It is conceded in this case, as the collision occurred in Missouri and as Kanaley was injured in that state, that the rule of the common law with reference to the liability, or rather the non-liability of the master to one of his servants, for the negligence of a fellow-servant or coemploye, prevails, and therefore that the railroad company is only liable for its own negligence, or for the negligence of some officer or agent who amounts to a vice-principal or a substitute for the company.The jury were instructed that Homer, the conductor, Gilday, the engineer, and the crew of the train drawn by engine No. 67, were fellow-servants of Kanaley, engaged in the same common employment, and therefore that the negligence of any one of these toward Kanaley would not be the negligence of the railroad company.It is claimed, however, upon the part of Kanaley, that the collision of the freight trains near Brush creek, Missouri, on the night of the 21st of September, 1884, was caused by the negligence of the train dispatcher in failing to notify the conductor and engineer of No. 67 that there was a second section of No. 11 following; that on account of this negligence of the train dispatcher, No. 67 moved from Lingo before the second section of No. 11 passed.

On the part of the railroad company, it is contended that the collision was the direct, proximate result of the negligence of Homer, the conductor of No. 67, and a fellow-servant of Kanaley.It claims that there was a system of signals adopted and in use upon its road, by means of which its conductors, engineers and other employes were informed that trains carrying such signals have following them other trains; that No. 11 carried these signals, and thereby indicated that a second section was following as part of it, and entitled to the same rights to the track as the first section of No. 11; that Homer disregarded these signals, and therefore that the collision and injuries were the necessary consequence of his negligence.It is admitted that the dispatcher is a vice-principal or substitute for the company, and not a mere fellow-servant, in common employment with the firemen or trainmen, and therefore that if the train dispatcher was negligent, the company was also negligent.The principal question in this case is, whether the train dispatcher was negligent in giving the order that "engine 67 will meet No. 11 at Lingo, and engines 57 and 51 at Macon."Homer, the conductor, was introduced as a witness by Kanaley.His testimony was very conflicting, contradictory, and unsatisfactory.Among other things, he testified that until he saw the approaching engine and train of the second section of No. 11, he had no knowledge that that train was on the road; that he drew out from Lingo with his train because he had orders to meet 57 at Macon, and that Macon was twenty miles distant He also testified as follows:

"Q.Did you have any knowledge of the condition of No. 11, whether it was in two sections or not?A.Yes, sir; I did.

"Q.Why?A.Because they had a red light on.

"Q.Before you left Lingo?A.Yes, sir.

"Q.Now, having seen the red lights on them, what did they communicate to you, indicate to you?A.Indicated another train following them."

On cross-examination he testified:

"Q.How long had you known this method of signals to be in use on the road?How long had you known this system of following trains to be in use on the road?A.I think it was on the time card at the time I went there, which was six years ago.The engineer and conductor of engine 68 had the same order that I had, and they were following me."

On further cross-examination, the railroad company asked the following questions of Homer:

"Q.With the information conveyed to you by those signals, had you the right with that information alone to leave that station in the face of those signals?A.No, sir; I had not."

The court struck out the question and answer.Thereupon, the railroad company asked the following questions:

"Q.I will ask you this question: Under the information given and conveyed to you by those signals, did you know that there was a train coming into Lingo following this first No. 11, which you had no right to go out in the face of?

"Q.Did you, by the signals which you saw carried by No. 11, know that another train was immediately following No. 11, which had the right to run into Lingo, regardless of you?"

The plaintiff below objected to these questions and to any answers thereto,...