Jones v. Atchison, T. & S.F. Ry. Co.
| Decision Date | 10 December 1938 |
| Docket Number | 33931. |
| Citation | 85 P.2d 15,148 Kan. 686 |
| Parties | JONES v. ATCHISON, T. & S. F. RY. CO. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In action against railroad for injuries received by grain inspector employed by milling company when switch engine bumped freight cars between which inspector was attempting to pass on "hold track" in congested switchyard question of liability of railroad was for jury.
Where a defendant is charged with various acts of negligence and the jury specially finds him guilty of one of the acts so charged, he is thereby exonerated as to the others.
In action against railroad for injuries received by grain inspector employed by milling company when switch engine bumped freight cars between which inspector was attempting to pass on "hold track" in congested switchyard special finding of jury that railroad was guilty of negligence in not giving proper warning exonerated railroad of other acts of negligence charged in petition.
In action against railroad for injuries received by grain inspector employed by milling company when switch engine bumped freight cars between which inspector was attempting to pass on "hold track" in congested switchyard instruction on duty of person to exercise ordinary care in choosing course he will pursue became law of case and bound inspector who made no complaint of instruction.
In action against railroad for injuries received by grain inspector employed by milling company when switch engine bumped freight cars between which inspector was attempting to pass on "hold track" in congested switchyard general verdict for inspector was inconsistent with special findings of jury that inspector by exercise of ordinary care could have avoided injuries and safely performed duties by working down same side of all cars on same track, and hence railroad was entitled to judgment notwithstanding the general verdict.
1. In an action for damages by a grain inspector employed by a third party to inspect carloads of grain in a congested railway switchyard, for injuries he sustained by the bumping of freight cars with a switch engine, while he was endeavoring to climb over and across the couplers of two freight cars, the pleadings and the evidence examined, and held that plaintiff's cause of action was sufficiently established to withstand defendant's demurrer thereto and that the issues of fact were properly submitted to a jury.
2. Rule followed that the jury's special finding of defendant's negligence exonerated defendant of the other allegations of negligence charged in plaintiff's petition.
3. The trial court's instructions were the law of the case, and the jury's special findings that there was a safe way to cross from one switch track to another without climbing over the couplers established defendant's plea of plaintiff's contributory negligence under the court's instructions and entitled the defendant to judgment notwithstanding the general verdict.
Appeal from District Court, Sumner County; Wendell Ready, Judge.
Action by Paul Jones against the Atchison, Topeka & Sante Fé Railway Company for injuries received by plaintiff when switch engine bumped freight cars between which plaintiff was attempting to pass in congested switchyard. Judgment for plaintiff, and defendant appeals.
Reversed and remanded, with directions.
Bruce Hurd, C. J. Putt, and Robert M. Clark, all of Topeka, Chester Stevens, of Independence, and E. J. Taggart, of Wellington, for appellant.
W. E. Holmes, Mark H. Adams, Howard L. Baker, Charles E. Jones, and Edward F. Arn, all of Wichita, and Logan Lane, Jr., of Wellington, for appellee.
This is an appeal from a judgment awarding damages for injuries sustained by plaintiff while passing between freight cars in the defendant's switchyard in Wellington.
Plaintiff was a grain sampler and inspector for The Hunter Milling Company which had one or more large mills and elevators in that city. He was permitted by the railway company to come into its switchyard to take samples of grain from railway cars consigned to his employer. The switchyard is quite extensive. There are twelve parallel railway tracks which lie side by side and stretch east and west for a mile or two. These tracks are connected by a lead track which permits freight cars to be switched from one track to any other. The first of these tracks on the south side of the switchyard is the "passing track," the next is the "main line track," and the others which are numbered from 1 to 10 are used for the storing and switching of freight cars and for the making up and breaking up of freight trains. In early summer when the harvest is good, several hundred cars of wheat arrive daily in Wellington. The switchyard is liable to become congested; and the problem of handling the carloads of wheat becomes so acute that three engines and nine switching crews are required to keep the traffic moving.
The cars of wheat consigned to The Hunter Milling Company were usually placed on tracks 2 and 3 immediately north of the main line track.
On the morning of June 23, 1937, the plaintiff Paul Jones and two other men, Dort Clark and Kenneth Denny, who worked under his direction, were engaged in taking samples and inspecting grain in freight cars standing on tracks 2, 3 and 4. In the course of their work they carried sacks suitable to hold samples of grain, a small crowbar, canvas, some car seals and a trier rod. This instrument is a brass tube about 5 feet long and 2 inches in diameter. It is pushed down into a mass of wheat and will draw out a sample of grain. The inspectors usually got through their work about 10 o'clock in the forenoon.
Plaintiff's testimony giving an account of his accident reads, in part, thus:
Plaintiff's petition stated his cause of action at length. One of its allegations was that track 2 was a "hold track" which defendant devoted to the placing of grain cars which were to be inspected and that cars on that track were not to be moved until such inspection was completed. The petition charged defendant with negligence in many particulars,--bumping cars on the "hold track" with a switch engine when defendant's servants knew that grain samplers and inspectors were or might be at work thereabout; humping or moving cars placed on a "hold track" for inspection purposes; moving cars on a "hold track" after being warned that plaintiff was working in or about them; failing to sound a whistle or give some signal or warning before moving the cars; running the switch engine with such force and violence as to throw plaintiff under the car wheels; disregarding the defendant's own rules touching the handling of freight cars on "hold tracks."
Defendant's answer pleaded a general denial, contributory negligence, and that plaintiff's accident and injury were the results of the ordinary risks of his employment, and that they were not the result of any negligence on the part of defendant or its employees.
The cause was tried before a jury. Defendant's demurrer to plaintiff's evidence was overruled. Defendant then adduced its evidence. Some rebuttal testimony was offered. The jury returned a general verdict for plaintiff, and answered special questions thus:
To continue reading
Request your trial
-
State v. Williams
...(1938) (“No objection was made thereto at the time of the trial and a complaint at this time is too late.”); Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 695, 85 P.2d 15 (1938) (stating that instruction became law of the case and jury's findings must control appeal because appellant “mad......
-
Martin v. State Highway Commission
...Mfg. Co., 151 Kan. 638, 100 P.2d 723; Walls v. Consolidated Gas Utilities Corp., 150 Kan. 919, 96 P.2d 656; Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 85 P.2d 15; Rasing v. Healzer, 157 Kan. 516, 142 P.2d 832. The sole question in this court, then, is whether the absence of a guardrail......
-
Cope v. Kansas Power & Light Co.
...pursuant to the request of the defendant and was taken from the instruction which appears in the opinion of Jones v. Atchison, T. & S. F. Ry. Co., 148 Kan. 686, 695, 85 P.2d 15. However, it is significant to note that the following portion of the instruction from which the trial court borro......
-
Sams v. Commercial Standard Ins. Co.
... ... Transportation Co., 148 Kan. 720, 725, 85 P.2d 28, 120 ... A.L.R. 521; Jones v. A., T. & S. F. Ry. Co., 148 ... Kan. 686, 695, 85 P.2d 15; ... [139 P.2d 866] ... Lambert ... ...