Hisle v. The Kansas City Southern Railway Company

• Citation: 138 P. 610,91 Kan. 572
• Decision Date: 07 February 1914
• Docket Number: 18,647
• Parties: C. E. HISLE, Appellee, v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY et al., Appellants
• Court: Kansas Supreme Court

138 P. 610

91 Kan. 572

C. E. HISLE, Appellee, v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY et al., Appellants

No. 18,647

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Crawford district court; ANDREW J. CURRAN, judge.

Judgment modified and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. EMPLOYER'S LIABILITY ACT--Personal Injuries--Negligence of Coemployee--Company Liable. Where, in an action by an employee against a railroad company for damages for personal injuries, the petition states a cause of action under chapter 239 of the Laws of 1911 (the employer's liability act) and the jury find negligence of another employee causing the injury, it is not necessary to consider whether there was evidence to prove an insufficiency in rules, in the number and competency of employees, equipment or other insufficiencies referred to in the statute. The finding of such negligence will uphold the verdict.

2. SAME--Instructions Refused--Not Prejudicial. In the situation stated above the denial of requests for instructions to the effect that there was no evidence to prove any of the insufficiencies referred to is not material.

3. SAME--Foreman of Laborers--Negligence of Subforeman--Foreman Not Liable. A foreman of laborers in railway service who employs and discharges the laborers is not answerable for the negligence of a subforeman unless the foreman had some direct control over or participation in the wrong complained of.

Cyrus Crane, G. J. Mersereau, both of Kansas City, Mo., and W. J. Watson, of Pittsburg, for the appellants.

John P. Curran, of Pittsburg, Andrew H. Skidmore, and Stephen L. Walker, both of Columbus, for the appellee.

OPINION

BENSON, J.:

This is an action to recover damages for personal injuries.

The plaintiff was a laborer in a gang whose usual service was unloading merchandise, supplies and material, at the storeroom in the yards of the defendant company at Pittsburg. He had been engaged in this general work for about forty days before he was injured. In the last two weeks he had worked around the company's storeroom, unloading oil, shovels, picks, and other articles received there. He had also worked with the same men unloading lumber, including timber for car sills. At the time in question the gang consisted of seven men. One of them, defendant Sorrensen, was a subforeman, called a straw boss. Defendant Loving was the foreman of the store department, and had general charge of the men working with Sorrensen, and also of other laborers. He employed and discharged the men.

On the day in question Loving directed Sorrensen to unload a car loaded with timbers 34 to 40 feet in length, 14 inches wide and 10 inches thick, designed for car sills. Loving was not present when the plaintiff was injured, and had not been for the preceding half hour. Sorrensen directed the men while laboring with them. The floor of the car was four and one-half or five feet above the ground, and about three feet higher than a platform at the side of the track. The car had been loaded to a height of ten feet above the floor. In unloading, two 4 x 4 oak skids nine to twelve feet in length were used, the sills being rolled upon the skids by the use of cant hooks, thence sliding down to the platform. After working several hours the load was removed so far as to leave a clear space upon the floor on the side next to the platform. The method then pursued was to place one end of a skid upon the floor near each end of the car, and then to place the sill upon the ends of the skids, the other ends projecting out over the platform. The weight of the timber when pushed off the car would bring the outward ends of the skids down so that the sill would slide upon them. In continuing the work after so reaching the floor a sill forty feet in length was rolled over to the side of the car to be unloaded. Sorrensen and three of the men were upon the north end of the car, and the plaintiff and two fellow laborers were on the south end. Sorrensen stepped down to the ground, and as the north end of the sill was lifted up, thrust the end of a skid under it, and resumed his place on the car. Ruddick, one of the men at the south end of the car, then stepped off and placed, or attempted to place, a skid under the sill there. Whether he succeeded or not is not clear; there is evidence, however, that the skid was not put under the sill, but the men at the north end pushed it off upon the skid there. In sliding down that skid the sill displaced the other skid so that it fell upon the platform, leaving one end projecting over it toward the track. The south end of the sill then fell upon this projecting end of the skid, which caused it to fly up over the car with great force, and strike the plaintiff, causing a serious injury.

The railroad company, Loving, and Sorrensen were sued jointly for negligence in failing to furnish the plaintiff a safe place, safe appliances, and competent and sufficient workmen, and in failing to provide proper rules for the work. It is charged that there was negligence in requiring the men to do this dangerous work under the direction of Sorrensen, who, it is alleged, was inexperienced and incompetent; in furnishing insufficient skids; in the failure to provide hooks or other means of securing the skids from slipping from the car, and in requiring the work to be done by hand when a derrick or crane should have been provided. It is also charged that Sorrensen was negligent in throwing one end off before the plaintiff and his fellow laborers at the other end had placed it upon the skid there.

Special findings were made as follows:

"1. If you find that one of the skids slipped or fell from from the car, state what you find caused it to fall. Ans. North end of sill being pushed off first.

"2. State whether or not the plaintiff knew the kind and character of skids that were being used at the time he was hurt. Ans. Yes.

"6. Was there any risk or danger connected with the using of said skids not known to plaintiff? Ans. Yes.

"7. If you answer question number six in the affirmative, then state what it was. Ans. Working with inexperienced men.

"8. Whose duty was it to employ and discharge the men working with plaintiff at the time in question? Ans. Claud Loving.

"10. If you find a verdict against the defendant Sorrensen state in what way he was careless or negligent? Ans. By not having sill properly placed on skids.

"11. If you find a verdict against defendant Loving state in what way he was careless or negligent. Ans. In not having competent foreman.

"12. State whether or not you find from the evidence that any of the men working with plaintiff, other than Loving or Sorrensen, were guilty of any negligence which caused the injury. Ans. No.

"14. Was defendant Loving present or taking any part in the work at the time the injury occurred? Ans. No."

A demurrer to the petition was overruled. Improper joinder is urged here in support of the demurrer. As the demurrer was not based upon that ground but upon the ground that the petition did not state facts sufficient to constitute a cause of action, there was no error in overruling it. It is also argued that the petition was defective in uniting charges of negligence of the individual defendants with other charges of negligence on the part of the company. If the petition was defective in this respect the defect was waived, no objection having been presented by demurrer or answer. (Civ. Code, § 95; Laws 1911, ch. 230; Lyons v. Berlau, 67 Kan. 426, 429, 73 P. 52.)

Error is also assigned upon the order overruling a demurrer to the evidence, and this presents the principal question in the case. It is insisted that the work was simple, involving no particular skill or experience, attended with no extraordinary dangers, and that the plaintiff's injuries were caused by mere mischance for which no one is to blame. On the other hand the plaintiff contends that the subforeman was negligent in causing the north end of the sill to be pushed off without pushing off the south end also, resulting in the fall of the other skid; that the skids were insufficient, being made of rough timber and not provided with hooks or claws to hold them in place; and that the work was done in a haphazard way, without a sufficient number of men and without competent oversight or direction. Brief quotations from the evidence may be useful here. One of the plaintiff's fellow laborers testified:

"We were unloading car sills about forty feet long, eight or ten inches thick. Mr. Sorrensen was in charge of squad. We unloaded on 4 x 4 oak skids. The one at the north end was about a foot and a half longer than the one at the south. Hisle, a Mexican and I were working at the south end. Do not remember who was working at the north end. Mr. Ruddick was there. The north end of this timber we were rolling off came a little ahead of the south end. The north skid was under and we had the other end rolled to the edge or near the edge of the skid. The skid was not clean under that end and the timber went off in some way. The weight of the sill threw the skid off."

Another testified:

"North end skid was longer than the one at south. Hisle worked at south end. I at north. North end was placed on skid first by Mr. Sorrensen. North end was adjusted right on the skid. South end was not hardly up to the point yet. The men meant to roll the timbers so that both ends could go off at the same time. After the piece of lumber left the car and got on the skid I saw one skid reel over, like that, and knock Mr Hisle down. . . .

"Q. These skids, as I understand, were out here on a level with the timber, stick out straight? A. Yes, sir.

"Q. Then when the timber went out on them they both went down and both...