Kansas City

• Decision Date: 09 February 1889
• Citation: 21 P. 770,41 Kan. 661
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY v. THOMAS B. KIER

21 P. 770

41 Kan. 661

THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY v. THOMAS B. KIER

Supreme Court of Kansas

February 9, 1889

Error from Montgomery District Court.

ACTION to recover damages for personal injuries. Judgment for plaintiff Kier on April 2, 1887, for $ 7,000 damages, and $ 350.85 costs. The Railroad Company brings the case to this court. The opinion, filed February 9, 1889, contains a statement of the material facts.

Wallace Pratt, Charles W. Blair, and Israel P. Dana, for plaintiff in error.

J. D McCue, and M. C. Showalter, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the 3d day of December, 1885, and for about two and one-half years prior thereto, Thomas B. Kier was a brakeman in the employ of the Kansas City, Fort Scott & Gulf Railroad Company on its regular passenger train running between Cherryvale, in Montgomery county, and Arcadia, in Crawford county; the train made daily trips each way, leaving Cherryvale at 7:25 in the morning and returning [41 Kan. 663] at 7:30 in the evening; in going to Arcadia it passed Parsons at 8:21 in the morning, and on its return reached Parsons at 6:37 in the evening; the Parsons station was not on the main line, but was reached by passing over a switch or spur track. The usual way of passing from the main line to the station was as follows: When the train was going east, the spur track was connected with the main track, and the train was run backward over the spur to the station; when going west, the same connection was made, and the train was run forward to the station and then run backward to the main line, when the switch was set in connection with the main line. It was the practice of Kier, and he alleged that it was his duty, when the train was backing out of Parsons, to take a position on the rear end of the train, and when the proper point was reached near the switch, to step to the side of the car and adjust the switch to connect the main line.

At the time of receiving the injury complained of, he had just stepped from the car for the purpose of turning the switch he was thrown under the moving train of cars in such a position that the cars passed over his left foot, crushing and mangling the same to such an extent that it had to be amputated, in order to save his life. This action was brought to recover damages of the company for the injury so received. The grounds upon which the plaintiff seeks to charge his injury to the negligence of the company, are set forth in the petition as follows:

"That on the morning of the 3d day of December, 1885, and for a long time prior thereto, the ground where the switch was located was solid and hard, and had been in such condition; that the service required of him in the moving and adjustment of the switch could be done in the manner stated without injury to his person; that he was well acquainted with the condition of the locality and the condition of the track and ground around the switch; that on the morning of the 3d day of December, the passenger train on which he was employed as brakeman left the city of Cherryvale on its regular schedule time for its trip to Arcadia and return to Cherryvale; that it passed through the city of Parsons, and at that time the ground in and about the switch was in its usual good and safe condition, and he performed his required service in opening the switch in his usual manner as brakeman; that after the passenger train had left the city of Parsons, and before its return on the evening of said day, the company had caused to be deposited in and about the switch several car-loads of cinders, which were by the gross carelessness and negligence of the employes of the company deposited and left in great heaps and piles upon either side of the track and in and about the switch, so that the ground upon either side of the track was raised to the height of fifteen inches, and so spongy and soft that a person stepping from the car would sink into them to a great depth, thereby rendering the ground in and about the track in an uneven, soft, spongy, and dangerous condition; that when the passenger train reached the city of Parsons on its return trip to the city of Cherryvale on the 3d day of December, relying upon and believing the track to be in the same condition as when he passed over the same a few hours before, and without any information or knowledge of any change having been made, or that any cinders had been unloaded and deposited in and about the track and switch, or that the same, by reason of the gross carelessness and negligence of the company and its employes, had been left in the dangerous condition they were in, he stepped from the train for the purpose of turning the switch so that the train could and would pass onto the main track; that in stepping from the car, he did so in the usual and ordinary manner, exercising due care to prevent injury; that when he stepped from the car for said purpose, his feet sank into the cinders, which were soft and spongy, and gave way under his feet, causing him to lose his balance and throwing him under the moving train of cars of the company."

Upon the trial, the evidence offered on the part of plaintiff tended to establish the foregoing allegations. It is contended by the railroad company that the petition does not state facts sufficient to constitute a cause of action, and therefore that no negligence of the company was proven at the trial. In support of this contention, it is said that the company owes to the public the duty of affording adequate instrumentalities for the transaction of its business and to make transportation safe; therefore that it had the right to haul its ballast and put the same on the track just as it was done in this instance; that the company was not required to notify the plaintiff it was re-ballasting or repairing its road; that it was his duty to be on the constant lookout for ballast, or repairs on the track, either by eyesight or inquiry; that it was his duty to notice the condition of the track, which was open to observation, and if he failed to do so, it was such neglect, not only of his duty, but also of ordinary precaution for his safety, as to bar recovery for any damages thereby. This court has already decided that--

"The law does not require that a railroad company shall, as between it and its employes, guarantee the sufficiency, good order and good condition of its tracks and roadway, but merely requires that the railroad company shall exercise reasonable and ordinary care and diligence to keep its tracks and roadway in a reasonably safe condition." (Rly. Co. v. Weaver, 35 Kan. 412; see also Rld. Co. v. Ledbetter, 34 id. 331; Rld. Co. v. Wagner, 33 id. 660.)

This court, however, decided in Rld. Co. v. Holt, 29 Kan. 149, 152, that--

"The rule is, even under the common law, that a master employing servants upon any work, particularly a dangerous work, must use due and reasonable diligence that he does not induce them to work under the notion that they are working with proper and safe machinery, while employing defective and dangerous machinery; and if an employe is injured on that account, and without fault of his own, the master is liable in damages."

And in Rld. Co. v. Moore, 29 Kan. 632, 633, it is said:

"In all cases, at common law, a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work . . . . And at common law, whenever the master delegates to an officer, servant, agent, or employe, high or low, the performance of any duty which really devolves upon the master himself, then such officer, servant, agent or employe stands in the place of the master and becomes a substitute for the master, a...