Kansas City, M. & O. Ry. Co. v. Loosley

• Decision Date: 08 June 1907
• Citation: 90 P. 990,76 Kan. 103
• Parties: KANSAS CITY, M. & O. RY. CO. v. LOOSLEY.
• Court: Kansas Supreme Court

90 P. 990

76 Kan. 103

KANSAS CITY, M. & O. RY. CO. v. LOOSLEY.

Supreme Court of Kansas

June 8, 1907

Syllabus by the Court.

If a defective request for an instruction actually brings to the attention of the court an important principle of law which ought to be stated to the jury in order that it may render an intelligent verdict, it may be prejudicial error to disregard it; and, if an attempt be made by an instruction given to submit to the jury the matter defectively covered by the request, it should be sufficiently explicit and comprehensive to cover fairly the field of the request.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § § 664-671.]

It is the duty of a master to make the conditions of his servant’s work reasonably safe. One of the conditions is that the servant be furnished with reasonably careful co-servants but, if the master fail in the performance of this duty, the servant, with knowledge of the facts and appreciation of the danger, may voluntarily accept the situation, and, if he does so without complaint or promise of change, the risk is assumed to the same extent as if it had originally entered into the contract of employment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 567.]

If, upon complaint to the master that the conditions of the work are unsafe, he refuses to better them, and the servant, understanding the danger, continues to work, he assumes the risk.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 583.]

If under the circumstances just stated injury befall the servant as a result of the defective conditions, the question of what a reasonably prudent man would have done upon the master’s declination to remedy them is immaterial. If the servant in fact voluntarily chose to assume the risk of appreciated danger, the prudence of his conduct is not open to investigation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 583.]

It is not essential that one who engages a contractor to produce a given result should reserve, or should interfere and take, complete or exclusive control over all features of the work to render him liable as master of the contractor’s servants; but the fact that he possesses a limited or partial control will not entail such a liability if the contractor is still left free to exercise his own will generally respecting the methods and means of accomplishing the result.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1257.]

If an employer in fact assumes the relation of master to the servants of one whom he has engaged to produce a given result, the duties and the responsibilities which the law imposes upon such a relation attach.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1257.]

Error from District Court, Sedgwick County; Thos. C. Wilson, Judge.

Action by Edward H. Loosley against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

John A. Eaton and Holmes & Yankey, for plaintiff in error.

Stanley & Stanley and Houston & Brooks, for defendant in error.

OPINION

BURCH, J.

The plaintiff, alleging himself to be an employé of the defendant, recovered damages for personal injuries sustained through the carelessness of a co-employé whom it was charged the defendant had been negligent in selecting. The plaintiff had been in railroad service ever since he was 18 years old, beginning as baggage master about the year 1875. After four or five years he became a freight conductor, and then became a passenger conductor. At the time of his injury he was the conductor of a construction train operated by a construction company engaged in building the defendant’s railroad. In the absence of one of his brakemen, the plaintiff was also acting in the capacity of brakeman. On April 25, 1903, while working in the yards at Carmen, O. T., he directed a flying switch to be made to change the engine from the south end to the north end of a string of cars. He was riding the disconnected cars toward the south intending to stop them just beyond a switch. The engineer followed them down at a rapid rate of speed, struck them before the switch was reached, coupled to them, and then stopped with such violence that the plaintiff was thrown from his position on the top of a car to the ground, where he struck on his head. When the flying switch was executed, there was a water car, called a "pioneer car," and a box car, in front of the engine. The brakeman who threw the switch rode on the ladder of the box car as the engine proceeded toward the south, and, in violation of his duty, neglected to give the proper signal in time to prevent a collision. When it was too late he gave a signal which caused the engineer to stop with a shock after the coupling had been made. The defendant’s answer contained the following allegation: "That at the time the plaintiff received said injuries of which he complains in said amended petition, and immediately prior thereto, he, said plaintiff, was guilty of contributory negligence whereby the said alleged injuries were caused and occasioned, and at said time the said plaintiff so placed himself upon the train and car, and so moved thereon, and remained in such position, when he knew, or by the exercise of ordinary care, might have known, that upon the coupling of said cars the same would be jarred and suddenly moved, and while in said position, and so negligent, as aforesaid, and in disregard of all precautions on his part for his own safety, the said plaintiff received the injuries aforesaid by reason of his negligence aforesaid, and at said time and place, while plaintiff was so engaged as brakeman upon said train and cars, he well knew, or by the exercise of ordinary care might have known, of each and all of the dangers and hazards incident to his employment as brakeman, the risk and hazard thereof being by said plaintiff at the time of said injuries, and prior thereto, assumed." It is clear that contributory negligence and assumption of risk are both pleaded. The plaintiff concedes that the defense of contributory negligence is interposed, but disputes that the other is made. If a separate paragraph had been made beginning with the words "at the said time and place while plaintiff was so engaged," there could be no doubt about the matter. As it is, the meaning is perfectly plain; and, in the absence of a motion to make it more specific, the answer sufficiently charged assumption of risk. Besides this, in instruction No. 11, not excepted to, the court told the jury the plaintiff assumed the ordinary risks of the negligent acts of his co-employés, and in instruction No. 15, not excepted to by the plaintiff, the court told the jury it was for them to determine from the evidence whether the plaintiff assumed the risk resulting in his alleged injuries. Therefore there can be no dispute that assumed risk was a litigated issue.

On the trial much evidence was introduced relating to the manner in which the brakeman, whose name was Mills, was in the habit of performing his duties, and much evidence relating to the plaintiff’s knowledge of his conduct. From the evidence the jury made the following special findings of fact: "Q. Was brakeman Mills in the habit of carelessly and negligently performing his duty as brakeman in, and about the switching and coupling of cars during the month of April, 1903? A. Yes. Q. Was brakeman Mills grossly negligent in and about the discharge of his duties as brakeman in and about the shifting and coupling of the cars at the time and place in question on the day plaintiff claims to have been injured? A. Yes. Q. If you answer ‘Yes’ to the last above question, then did such negligence of brakeman Mills materially and proximately contribute to causing any of the injuries to plaintiff complained of by plaintiff? A. Yes. Q. Did the plaintiff as conductor, Mills as brakeman, and Ballou as engineer, become members of the same crew in running the construction train before the plaintiff was injured? A. Yes. Q. Was not the plaintiff, Mills, and Ballou members of the same crew from about the 1st of April, 1903, till the accident? A. Yes. Q. Was not the movement of the train and switching of the cars during which Loosley was injured under his direction and control? A. Yes. Q. Did not the plaintiff participate in and assist in the movement of the cars and doing the switching in the manner in which it was done just prior to the accident? A. Yes. Q. Had not the switching of cars by the construction crew, of which plaintiff was conductor, been done in a similar way on previous days before plaintiff was injured? A. Yes. Q. Had not the plaintiff for about 25 days prior to the accident been in charge as conductor of the train crew wherein engineer Ballou and brakeman Mills were working? A. Yes. Q. During that time was it not his duty to observe the character of the work of engineer Ballou and brakeman Mills? A. Yes. Q. Had not engineer Ballou and brakeman Mills been daily under conductor Loosley, the plaintiff, several days in April, 1903, immediately prior to the accident? A. Yes. Q. Did not the plaintiff know at the time of the accident the character of the work that the engineer Ballou, and brakeman Mills had been doing? A. Yes. Q. Had not the plaintiff an opportunity to know and see the work of brakeman Mills for several days in April, 1903, prior to the accident in which plaintiff was injured? A. Yes. Q. Was not the work of brakeman Mills for several days prior to the accident under the control of the plaintiff as conductor of the train? A. Yes. Q. For how long a time before plaintiff was injured were the plaintiffs Mills and...