Iman v. The Missouri Pacific Railway Company

• Decision Date: 09 October 1909
• Docket Number: 16,147
• Citation: 104 P. 565,80 Kan. 715
• Parties: BERTHA E. IMAN, as Administratrix, etc., v. THE MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

104 P. 565

80 Kan. 715

BERTHA E. IMAN, as Administratrix, etc., v. THE MISSOURI PACIFIC RAILWAY COMPANY

No. 16,147

Supreme Court of Kansas

October 9, 1909

Decided July, 1909.

Error from Franklin district court; CHARLES A. SMART, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Defective Appliances--Injury to Employee--Demurrer to Petition. A petition which in substance alleges that the injury complained of was caused wholly by the negligent manner in which the defendant maintained its road-bed, track and switches at the place where the accident occurred, by not having the frog of the switch and the guard-rail blocked, and that therein the defendant failed to use ordinary care for the protection of its employees, states a cause of action as against a general demurrer.

F. B Dawes, and R. C. Miller, for the plaintiff in error.

B. P. Waggener, and W. P. Waggener, for the defendant in error.

OPINION

SMITH, J.:

The plaintiff in error filed her petition in the district court of Franklin county, which, omitting the title, reads:

"Plaintiff for a cause of action against the above-named defendant states:

"That on the 9th day of November, 1907, at the town or city of Pomona, in Franklin county, state of Kansas, William L. Iman departed this life; that at the time of his death he was an inhabitant and resident of the county of Miami, state of Kansas, and was the owner and possessor of certain personal property in said Miami county.

"Plaintiff further states that on the 21st day of November, 1907, she who was then and is now the widow of the said William L. Iman, deceased, was duly appointed and duly qualified as the administratrix of the estate of the said William L. Iman, by the probate court of Miami county, Kansas, and at the time of the filing of this petition she is the duly appointed, qualified and acting administratrix of the estate of the said William L. Iman, deceased.

"Plaintiff further states that at his death the said William L. Iman left the following-named heirs, all of whom are now living, at the time of filing this petition, viz., this plaintiff (his widow) and a son, Emery V. Iman, about one year old.

"Plaintiff further alleges that the Missouri Pacific Railway Company is a corporation doing business in the state of Kansas, and maintains and operates a line of railway extending from Kansas City, in the state of Missouri, into and across the state of Kansas, into the state of Colorado, and for all purposes of business is a citizen of the state of Kansas; that a line of said defendant's railway system extends into and across this, Franklin county, Kansas; that on the 9th day of November, 1907, and at the time of filing this petition, the said defendant maintained stations and station agents on, and operated passenger- and freight-trains over, its said line of railway extending through this county.

"Plaintiff further states that on the said day of November, 1907, and for about two months prior thereto, her decedent, the said William L. Iman, was in the employ of said defendant as a brakeman on freight-trains; that prior to November 9, 1907, his run was from Osawatomie to Kansas City and return; that November 9, 1907, the defendant for the first time sent plaintiff's said decedent on a run west from Osawatomie to Council Grove, as a brakeman on a freight-train; that at Pomona, in Franklin county, Kansas, on the said 9th day of November, 1907, at about 7 o'clock P. M., being dark, plaintiff's said decedent, William L. Iman, while in the proper and ordinary discharge of his duties as such brakeman, and while attempting to cross the defendant's railway track, for the purpose of reaching the other side of the track to gain a position from which he could signal the defendant's engineer, who was on the defendant's locomotive which propelled and operated the defendant's freight-train, and while the plaintiff's said decedent and the other members of said train crew was engaged in switching cars at said place, caught his foot in the frog of the switch in defendant's line of railway, and on account of the sole of his shoe catching under the flanges of the rails he was unable to extricate his foot before he was caught by a portion of said freight-train that was then being backed up for the purpose of being coupled to other cars then and there standing on defendant's track; that the said cars that were being backed knocked said decedent down on the track, ran over him, crushing and mangling his body and instantly killing said decedent; that the death of decedent was then and there wholly caused by the negligent manner in which defendant maintained its road-bed, track and switch at said point, by not having the frog of the switch and guard-rail blocked, where the rails come close together, so an employee's foot, while engaged in operating its trains, could not get caught under the flanges of the rails; that this defendant for a long time prior thereto had an opportunity to know and did know that the switch at said point was in a dangerous and unsafe condition; that said decedent did not know and did not have an opportunity to know the unsafe condition of said switch and was without negligence on his part.

"Plaintiff further states that the defendant, by failing to have the proper blocks in the frog of its switch between the guard-rail and the other rail in its track, failed to use ordinary care for the protection of its employees, and failed to use the ordinary degree of care which on said date and for a long time prior thereto had commonly been in use by many of the different railway systems...