Jones v. The Atchison

• Decision Date: 07 March 1925
• Docket Number: 25,786
• Citation: 233 P. 1019,118 Kan. 116
• Court: Kansas Supreme Court
• Parties: JOHN F. JONES, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

233 P. 1019

118 Kan. 116

JOHN F. JONES, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 25,786

Supreme Court of Kansas

March 7, 1925

Decided January, 1925.

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

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Injury to Servant--Safe Place to Work. Between trips a motor car was parked by the railroad company in its yards, where it was cleaned by the plaintiff. It was the practice for the engineer to come to the car about an hour before leaving time to prepare the car for the trip. From the time he came on the car he was in control of the same, and at the appointed time drove it from the yards to the station. While at work on the car he permitted another employee of the railway company to place two cans of gasoline on the motor car, and allowed them to remain there for some time near a burning stove, which was contrary to the rules of the railway company. The gasoline was the property of the employee who brought it to the car, and he told the engineer he was going around the "Y" with him to his home. The engineer knew the contents of the cans and while discussing the quality of the gasoline the engineer pulled the cork of one of the cans, allowing the fumes to escape, and immediately there followed an explosion which injured the plaintiff while he was at work in cleaning the car. Held, that the railway company became liable to the plaintiff for the injury on the ground that it had failed to furnish him a safe place to work.

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

S. C. Bloss, George T. McNeish, Martin E. Jarvis, and Stewart Bloss, all of Winfield, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action by John F. Jones to recover from the Atchison, Topeka & Santa Fe Railway Company for personal injuries resulting from an explosion which occurred on a motor car that the plaintiff was cleaning. He was awarded damages in the sum of $ 8,841.82, and from the judgment the defendant appeals.

There is no contention as to the extent of the injury or the right to the award if there is any liability on the part of the company for the injuries sustained. The regular run of the motor car was from Winfield to Florence, leaving Winfield about 9:25 p. m. and returning at 6:50 the following morning. The car was divided into four compartments--engine, baggage, smoking and passenger compartments. When the passengers were discharged at the station in the morning, the car was run some distance into the yards of the company, where it was parked during the day. The practice was for Jones to come upon the car about noon, his duty being to dust and clean the several compartments, washing the windows inside and out, and he was also required to ice it. The engineer of the car, named Robohn, came to the yards about 8:25 p. m. and set about preparations for starting on his run. On the evening of the explosion he came to the car at the usual time, when he put on his working clothes, put oil into the motor, and started the auxiliary motor and the air compressor. He then went about the mixing of light with heavier oils, and while engaged in this work a brakeman named Johnson, who worked on the branch line of the defendant, running between Augusta and Winfield, approached the motor car carrying two cans, which he lifted into the baggage compartment where the engineer was, saying to him that, "The two cans and myself are going round the 'Y' with you to the station." The cans contained gasoline, which Johnson had obtained at Augusta for his own use. It was a high-test gasoline, and he proceeded to tell the engineer about its qualities and the increased mileage obtained from its use in automobiles. Robohn, who had recently purchased an automobile, was interested and talked with Johnson about the gasoline. There is a conflict in the testimony as to this conversation, and also as to the action of Robohn in handling a gasoline can. There is testimony that while discussing the gasoline Robohn went over to one of the cans and pulled out a cork, and when he did so the fumes came out, and immediately there was a flash followed by an explosion.

From the time the engineer came upon the car he was in control of it and remained in control until the car was run down to the station and turned over to the conductor. In the yard, and while the car was in the control of the engineer, Jones helped him and did any work the engineer asked him to do, and he was engaged in cleaning the oil off of a rail and window which the small motor had splashed when the explosion occurred. In the compartment where the gasoline cans were placed, and only a few feet away, was a Baker heater in which a fire was burning.

In their special findings the jury stated that the negligence which caused the injury was that of Robohn in allowing the cans to remain in the car. It was found that the cans had been in the motor car about twenty minutes when the explosion occurred, and that until the cans were placed there the motor was a safe place in which to work. The jury also found that engineer Robohn was in charge of the car at the time the gasoline cans were put on it. There are findings too, that Johnson placed the cans of gasoline on the...