Kelley v. The Union Pacific Railway Company

• Decision Date: 08 May 1897
• Docket Number: 9029
• Citation: 48 P. 843,58 Kan. 161
• Parties: JOHN W. KELLEY v. THE UNION PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

48 P. 843

58 Kan. 161

JOHN W. KELLEY v. THE UNION PACIFIC RAILWAY COMPANY

No. 9029

Supreme Court of Kansas

May 8, 1897

Decided January, 1897.

Error from Leavenworth District Court. Hon. Robert Crozier, Judge.

Judgment reversed.

Fenlon & Fenlon, for plaintiff in error.

A. L Williams, N. H. Loomis and R. W. Blair, for defendant in error.

OPINION

ALLEN, J.

This action was brought by Kelley to recover damages for injuries received by him while employed as a bridge carpenter in constructing a bridge on the line of the defendant's road. The court sustained a demurrer to the plaintiff's evidence, and he thereupon brought the case to this court to obtain a review of that ruling. The defendant in error moves to dismiss, on the ground that, on October 13, 1893, after the petition in error was filed, the property of the defendant was placed in the hands of receivers who have never been made parties to the proceedings in this court. The only authority cited in favor of the motion is the case of Scannell v. Felton (57 Kan. 468; 46 P. 948), in which this court held that "a receiver of an insolvent bank, duly appointed to take charge of the assets under the Banking Law, is a necessary party to a proceeding in error in this court to reverse a judgment rendered in favor of the bank prior to his appointment." In that case, it appeared that the bank was insolvent, and that the only persons interested in enforcing the judgment were its creditors. It was held that the receiver, as their representative, was a necessary party to a proceeding to reverse the judgment. This is an essentially different case. The receivers are not interested in establishing the demand. It is not of the assets in their hands. Nor is there any attempt, as yet, to charge the assets in their hands with the payment of the claim. The injury for which the plaintiff seeks compensation was received while he was employed by the Railway Company, and his cause of action is against it. The fact that the assets of the Company have been placed in the hands of the receivers does not change nor affect the liability of the Railway Company to the plaintiff and the receivers are not necessary parties to a determination of the controversy. T. W. & W. Rly. Co v. Beggs, 85 Ill. 80; Mercantile Trust Co. v. Pittsburgh & W. R. Co., 29 F. 732; High on Receivers (3d ed.), § 258; Patrick v. Eells, 30 Kan. 680, 2 P. 116.

It appears from the testimony given on behalf of the plaintiff that he was one of a gang of eight men, working under the direction of George Sherwood, constructing a pile bridge across Stranger Creek, to take the place of a Howe truss bridge. The piles had been driven before this gang commenced work. The plaintiff was first engaged in bringing the piles into line, by digging and forcing them with a jack-screw. While he was so employed, other members of the gang constructed a scaffold, attached to the piles, on which the plaintiff afterward stood while sawing off the tops of the piles and preparing them for the superstructure. In order to proceed, it became necessary to move one of the beams in the old bridge to make room to do the work. While the plaintiff was holding a jack-screw which was being used in moving the beam, the scaffold on which he was standing gave way, and he fell a distance variously estimated at from twelve to twenty feet, breaking his leg, and otherwise injuring him. That part of the scaffold from which he fell was constructed by placing timbers thirty-two feet long and about seven inches square, designed for guard rails, on each side of the piling, each supported by three-fourths-inch iron bolts, driven into the piles. It appears that but two bolts were used to support each beam. Across these, plank were laid on which the men stood to work. The bolt at the west end of one of...