Jameson v. Payne

• Decision Date: 08 July 1922
• Docket Number: 23,769
• Citation: 208 P. 560,111 Kan. 670
• Parties: JESSE R. JAMESON, Appellee, v. JOHN BARTON PAYNE, as Agent, etc., Appellant
• Court: Kansas Supreme Court

208 P. 560

111 Kan. 670

JESSE R. JAMESON, Appellee, v. JOHN BARTON PAYNE, as Agent, etc., Appellant

No. 23,769

Supreme Court of Kansas

July 8, 1922

Decided July, 1922.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Personal Injuries--Proper Party Defendant--Substitution. Where an action by a railway employee for injuries sustained in railway service is properly brought against the director-general of railroads and federal agent under the transportation act of 1920 and judgment is secured thereon, and where an appeal is taken on behalf of the director-general, the personal name of the director-general is a mere formality; and such appeal will be considered on its merits and not dismissed on the technical ground that the person holding that office has retired and another person has succeeded him in office and no motion for substitution has been formally made and allowed.

2. SAME--Findings and Judgment Sustained by Evidence. The evidence examined and held to support the jury's findings of fact and the judgment entered pursuant thereto, and no prejudicial error discerned therein.

William R. Smith, Owen J. Wood, and Alfred A. Scott, all of Topeka for the appellant.

Alfred M. Jackson, Schuyler C. Bloss, and George T. McNeish, all of Winfield, for the appellee.

OPINION

DAWSON, J.:

This is an appeal from a judgment against a railway company for injuries sustained by a switchman in its service.

While this switchman, Jesse R. Jameson, was climbing up the end of a freight car to set a brake on it, a number of other cars which had been "kicked" too hard crashed into this car and caused him to lose his hold, knocked him against the end of the next car and he fell to the ground between them. His foot was caught and crushed, and he was dragged some distance, and seriously and permanently injured. At the time of his injury the switching crew of which plaintiff was a member were engaged in distributing freight cars on five tracks. It was the duty of plaintiff when a car was kicked into one of these tracks to mount the car and set a brake on it, so that it would be stopped before passing a certain point--the east side of a street crossing. His foreman had particularly enjoined him not to let the cars pass that crossing. Plaintiff had set one brake on the car from which he fell, and had been at work elsewhere and on other cars when it occurred to him that he should set another brake on the car in question. In doing so he temporarily got out of touch with his foreman, and as the foreman and enginemen did not know or expect him to be thereabout, they kicked the cars against the one which plaintiff was climbing. Hence the accident and injury to plaintiff.

The jury's general verdict was in favor of plaintiff. Special questions were also answered:

"Q. 1. If you find that the defendant's negligence wholly or partially caused the accident and injury to the plaintiff, state specifically in what such negligence consisted. Ans. Kicked car too hard and neglected to keep in touch with field man.

"Q. 2. Was the plaintiff familiar with the manner and methods of the switching crew in switching and distributing the cars to the several tracks in the yards. Ans. Yes.

"Q. 3. Was it the custom in the yards in Winfield, Kansas, for the field man to keep a watch out for his own safety when cars were being kicked or shunted in upon the several tracks? Ans. Yes, with conjunction of foreman. . . .

"Q. 5. Before beginning to kick or distribute the cars to the several tracks, was the plaintiff ordered by the foreman to set a brake on one car of the string of cars standing on the main track? Ans. Not specifically on main track alone, but to hold cars on each track east of Andrews Street.

"Q. 6. After having complied with the order mentioned in the preceding question and after he had come down from the string of cars and resumed his work as a field man, did the plaintiff again go upon said string of cars standing upon the main track of his own volition and without orders from the foreman? Ans. Yes.

"Q. 7. If you answer the preceding question in the affirmative, then state whether or not the plaintiff notified the foreman or switching crew that he was about to go upon said string of cars a second time. Ans. No, he had no chance.

"Q. 8. Was the plaintiff guilty of any negligence contributing to his injury. Ans. Yes.

"Q. 9. If you answer the next preceding question in the affirmative, state how much you deduct from the total amount you allow him, because of his own negligence? Ans. We allow plaintiff $ 10,000.00, but deduct therefrom $ 2,000.00 for his own negligence."

Judgment being rendered accordingly, the defendant appeals. Plaintiff moves to dismiss on the ground--

"That the appellee commenced suit against John Barton Payne, who was then the legally appointed and qualified agent for railroads under government control; that said suit was tried while the said Payne was agent and on the 21st of March, 1921, judgment was rendered against Payne, as agent, who was at that time the duly acting agent as aforesaid.

"That on the 28th of March, 1921, said Payne resigned as agent, and one James C. Davis was appointed as his successor, and since that time he has been acting as agent; that no appeal was taken until the 16th of July, 1921, and at the time of said appeal Payne was no longer agent as aforesaid, and that the appellant, nor his successor, have ever made any application for a revivor or substitution, and no such revivor or substitution has ever been made, and that more than six months has elapsed since said judgment was rendered."

When congress authorized the president to take over the railroads and to appoint a director-general to unify and operate them for the duration of the war, the first director-general thus appointed ordered that all actions against railroads should be brought against him as director-general; and this order whether correctly interpreted or not, was construed to require also that the director-general's Christian name and surname in haec verba should be included therewith. It need not concern us what purpose could possibly be served by this trivial formality. It was no more than a formality; the essential thing was that the action be against the director-general; and whether the person holding that official position bears the Christian name of Tom, Dick, or Harry, and the surname of Jones, Smith, or Brown is altogether immaterial. We have had occasion to consider this subject at some length in Helm v. Railway Co., 109 Kan. 57, 198 P. 190; and while the situation here is not precisely similar, it falls within its general scope. Here the director-general and agent of the federal government was sued, and judgment entered against him--the officer, not the man. ...