Kansas Pacific Railway Co. v. Peavey

• Decision Date: 01 July 1885
• Citation: 34 Kan. 472,8 P. 780
• Parties: THE KANSAS PACIFIC RAILWAY COMPANY v. JOSEPH PEAVEY
• Court: Kansas Supreme Court

8 P. 780

34 Kan. 472

THE KANSAS PACIFIC RAILWAY COMPANY v. JOSEPH PEAVEY

Supreme Court of Kansas

July 1, 1885

Error from Wyandotte District Court.

THIS case has once before been in this court, and will be found reported in 29 Kansas, 169, and 11 American & English Railroad Cases, 260, where the pleadings as they then were are set out in full. When the case was formerly here the judgment of the lower court was reversed, and the cause remanded for a new trial. On its return to the court below the defendant, with leave of the court, amended its answer as follows:

"And this defendant, for further answer and by way of amendment and in lieu of the second paragraph of its answer, says that the plaintiff executed the agreement in said paragraph of the answer mentioned; that at the time of the execution of the said agreement, John Ellis, in the petition mentioned, was in the service of the defendant, and the plaintiff had served with him and well knew his capacity, habits and manner of handling an engine; that the plaintiff was also a locomotive engineer, and as a locomotive engineer, train dispatcher and brakeman in and about railroad yards, was thoroughly experienced at the time he took service with the defendant and he ever after that--that is to say, for four years or more--he well knew that it was dangerous, as in fact it was to engage in the coupling of cars moving detached from the engine without strictly observing the speed of the detached car; and he also believed that he, said John Ellis, was liable to fail to observe signals and to so handle the locomotive as to send the car back faster than it was safe for the brakeman to undertake to couple it; and before the injury complained of said plaintiff had represented to his superior officer, having power to employ and discharge defendant's servants in the yard, that Ellis was liable to send cars back too fast; and yet, well knowing the habits and capacity of the said Ellis, he took service with him and continued in such service for a long time after he had so complained--that is to say, for six months or more--well knowing that he was under obligation by his agreement to quit the service of the company if he had reason to suspect that his co-servants were incompetent or careless, which he was at liberty at any time to do. There was no promise made to him to discharge Ellis, or take any measures to correct or change the manner of service in the yards, of which plaintiff complained; and the said plaintiff, knowing all the facts and his liability to injury, (the said Ellis at the time of the injury being under his control and direction, and subject to his signals,) ordered by signals a car to be detached from the engine which Ellis was operating, and sent or kicked back unattended--he intending to couple said detached car to a standing car when they should come together. And although the plaintiff believed that Ellis was likely to disregard or fail to observe his signals, and send said car back too fast, yet, without observing or knowing whether this signal was understood by Ellis, and without noticing the speed of the car, or how far distant it was cut off, or paying any attention whatever to said Ellis, the locomotive, or the car, as it was his duty to do, he did carelessly and heedlessly place himself in position to make coupling of the cars, without first taking proper care to know whether it could be safely done; and while attempting to do so, was by his own carelessness, heedlessness and negligence injured in the manner complained of."

August 25, 1884, the plaintiff Peavey recovered a judgment for $ 6,500 and costs against the defendant Railway Company. It brings this judgment here for review. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

J. P. Usher, for plaintiff in error.

Thomas P. Fenlon, and John B. Scroggs, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Wyandotte county by Joseph Peavey against the Kansas Pacific Railway Company, to recover damages for an alleged injury to the plaintiff, claimed to have been caused by the negligence of John Elli certain special questions of fact; in refusing to strike out certain answers of the jury to certain special questions of fact; in overruling the defendant's motion for a new trial; in refusing to render judgment in favor of the defendant on the special findings, etc.

It is claimed by the plaintiff in error, defendant below, that by virtue of the contract entered into between the plaintiff below and the defendant below on August 11, 1875, a copy of which contract is set out in full in 29 Kan. 173, and in 11 Am. & Eng. Rld. Cases 262, 263, the plaintiff cannot recover; that the alleged negligence of Ellis was at most only the negligence of a fellow-servant, a coemploye, and not the negligence of the railroad company itself, and that with regard to such negligence the contract is valid and precludes a recovery. A majority of this court, however, when the case was formerly here, decided against this claim of the defendant below. While the writer of this opinion concurred in the most of that decision, yet he did not concur in this particular portion thereof, and he still thinks it erroneous. The correctness of that decision is now challenged by counsel for defendant below. He claims that it is against authority and erroneous upon general principles, and cites in support of his claim the case of Griffiths v. The Earl of Dudley, 9 L. R., Q. B. Div. 357, and the note to the case of the K. P. Rly. Co. v. Peavey, 11 Am. & Eng. Rld. Cases, 276. (See also note to Peavey's Case in 44 Am. Rep. 633.)

It is also claimed by counsel for defendant below, that even if the aforesaid contract be held to be against public policy and void, so far as it permits a waiver or release of damages resulting from negligence, still that the following provisions which are contained in the contract must be held to be valid, at least so far as they apply to the acts of mere fellow-servants in the same common employment, to wit:

"And I agree that before exposing myself to danger in coupling or uncoupling, handling, using or moving any engine or car, I will examine the condition and sufficiency thereof, and if found in any respect defective or insufficient, that I will report the same forthwith to the person under whose immediate supervision I am employed. And I hereby further agree to rely, at all times, upon my own judgment as to the condition and sufficiency of all the articles, machinery, implements and tools herein enumerated, and used by said company, and also as to the competency and skillfulness of its servants in all grades and departments, and that I will quit the employment of said company whenever I am unwilling to abide by the terms of this agreement."

It is claimed that freedom to contract should be the universal rule, unless the contract is clearly and manifestly illegal, immoral, or against public policy; and it is further claimed that no contract should be construed to be against the spirit or policy of a statute unless the statute itself in express terms or by the clearest of implications shows that the contract is in contravention of its spirit and policy; and it is further claimed that this rule of construction is particularly applicable where the statute itself is of recent origin and in derogation of the principles of the common law which have existed for centuries and been established from time immemorial. There is no claim that the present contract is illegal, immoral, or against public policy, unless it is against the spirit or policy of chapter 93 of the Laws of 1874, (Comp. Laws of 1879, ch. 84, P 4914,) which goes to the extent of making railroad companies liable for injuries to a servant or employe, resulting from the negligence of a fellow-servant or coemploye while in the same common employment. While the writer of this opinion is still of the opinion that the decision made by this court, holding that the contract between the plaintiff and the defendant was against public policy and void, is erroneous, still he has no disposition now to weaken the force or effect of that decision. That decision makes the law to be in Kansas precisely what an express provision of the statute makes the law to be in Iowa; and therefore the law as thus made cannot be very bad; indeed, the writer of this opinion is inclined to think that it would be better if the legislature should go further, and prohibit the present mode of coupling cars with links and pins, and should require that automatic or self-coupling appliances should be used in all cases, and should enact that railroad companies should in all cases be absolutely liable for injuries resulting from the use of links and pins in coupling cars. The amount of injury suffered from this source is frightful. The longest and most varied experience cannot exempt the car-coupler in every case from injury. But so long as the law remains as it is, the courts have no discretion but to enforce it. Following the decision heretofore made in this case, we cannot see that it is necessary to make any further comment with reference to said contract.

One of the rules of the common law which we think is still in force is as follows: If an employe knows that another employe is incompetent, or habitually negligent, or that the materials with which he works are defective, and he continues his work without objection, and without being induced by his employer to believe that a change will be made, he will be deemed to have assumed the risk of such incompetency, negligence, or defects, and cannot recover for an injury resulting therefrom. (Kroy v. C. R. I. & P....