Kansas City

• Decision Date: 08 June 1895
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY v. JAMES C. MURRAY

40 P. 646

55 Kan. 336

THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY v. JAMES C. MURRAY

Supreme Court of Kansas

June 8, 1895

Error from Johnson District Court.

ACTION by Murray against the Railroad Company to recover damages for bodily injuries. Plaintiff had judgment; defendant brings the case to this court. The material facts are stated in the opinion herein, filed June 8, 1895.

Judgment reversed.

Wallace Pratt, I. P. Dana, and Chas. W. Blair, for plaintiff in error.

Warner Dean & Hagerman, and I. O. Pickering, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This action was brought by James C. Murray against the Kansas City, Fort Scott & Memphis Railroad Company to recover damages on account of personal injuries alleged to have resulted to him as an employee of said railroad company while in the performance of his duties as such employee, by reason of the fault and negligence of a coemployee. He was employed as a brakeman on a freight-train which ran between Fort Scott, Kan., and Kansas City, Mo., and on August 31, 1889 the train upon which he was working arrived at Miami station, where the Rich Hill branch unites with the main line of the railroad. The train was backed in upon the branch line in order to let a passenger-train which was about due to pass, and the conductor went to the depot to get bills of lading, etc., leaving the train in charge of Murray. Four cars loaded with coal and standing upon a side-track were to be taken into the train at this point, so the locomotive and a car were cut off from the train, and, it being in the night-time, a red light was placed on the end of the train from which the locomotive and car were taken. In the absence of the conductor, Murray had charge of the train, and under his direction the locomotive and car were run forward some distance and then backed in upon the side-track where a coupling was made with the four cars of coal. The rear car of coal was an open one loaded above the level of the side and end boards with fine coal, and there was a narrow platform at one end of the car to which a brake-staff was attached. Murray climbed upon the top of the rear car of coal, stationed himself about the center of it, and, with lantern in hand, signaled the engineer to pull out on the main line, which was done. Then, still acting under the directions of Murray, who was acting as brakeman and conductor, the engineer began backing up for the purpose of coupling onto that part of the train which had been left standing 700 or 800 yards from the switch on the main line. To make this connection they had to back over a sag or low place, then up an incline, and as they approached the stationary part of the train, Murray was still standing upon the top of the car ready to signal the engineer when occasion required; and while they were thus. running at the rate of about six miles an hour, and were yet about 13 car lengths away from the stationary part of the train, the engineer, without any signal from Murray, or warning to him, applied the steam-jam with the effect of suddenly checking the train and jerking Murray forward upon the car, and before he could regain his equilibrium the steam-jam was again applied by the engineer, causing another jerk, thereby throwing him to the ground and under the moving wheels of the train, so that he was seriously injured.

Testimony was offered in behalf of the railroad company, that there was no sudden stop or jerk of the train, but that the engineer, believing that he was close to the stationary part of the train, merely slackened the speed to avoid a collision; and there was also some testimony to the effect that Murray's injury was the result of his own carelessness. The jury, however, found that Murray was in the discharge of his duty, and was using due care at the time of the injury; that he was thrown from the car by the unnecessary action of the engineer in applying the steam-jam or tank-brake; that he applied it without any signal from Murray, who was in control of the train at the time, and who had no intimation that the brake was to be applied; and further, that it was not necessary for the engineer in the discharge of his duty, using ordinary care, to apply the brake at the time he did in order to prevent a collision with the remaining portion of the train toward which he was backing. The company was found to be liable to the plaintiff for the injury, and the damages assessed were $ 2,500.

It is contended by the company that, taking the testimony of the plaintiff, it fails to show such culpable negligence of the engineer as would make the railroad company liable. It is said that the engineer was not under any duty to give any signal or warning to Murray, and had a right to assume that Murray, who had had considerable experience in the railroad business, would protect himself from the jars and jerks incident to the making up of a train, or to the starting and stopping of a train. It is contended that no preliminary signal or warning to laborers upon the train, to enable them to...