Lane v. The Missouri Pacific Railway Company

• Decision Date: 05 April 1902
• Docket Number: 12,314
• Citation: 64 Kan. 755,68 P. 626
• Parties: DORA A. LANE v. THE MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

68 P. 626

64 Kan. 755

DORA A. LANE v. THE MISSOURI PACIFIC RAILWAY COMPANY

No. 12,314

Supreme Court of Kansas

April 5, 1902

Decided January, 1902.

Error from Brown district court; WM. I. STUART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury to Employee -- Defective Switch--Burden of Proof. In an action against a railroad company for the recovery of damages for injuries to an employee occasioned by the alleged faulty construction of a split switch, the plaintiff must show, in order to warrant a recovery, not only the way in which the switch was constructed, but that such construction was not of a proper and approved kind, or, if of a proper and generally approved kind, that the one complained of was of improper and faulty construction.

2. RAILROADS No Presumption of Negligence. In order that a plaintiff may recover in such action, he must show negligence on the part of the company, and, in the absence of a statute making it so, the fact of the occurrence of the injury raises no presumption of such negligence.

W. D Webb, and John F. Kerrigan, for plaintiff in in error.

Waggener, Horton & Orr, and S. L. Ryan, for defendant in error.

CUNNINGHAM, J. JOHNSTON, POLLOCK, JJ., concurring.

OPINION

CUNNINGHAM, J.:

Plaintiff in error brought her action to recover damages for the death of her husband, caused, as she alleged, by the negligence of the defendant. The particular negligence set out was that the company, in constructing a certain split switch in use in its yards at Hiawatha, failed to "block it"; that is, insert between the movable rail of the switch and the stationary rail a block of wood, and also that the angle-bars, or fish-plates, which connected the movable rail with the stationary rail, were affixed by putting the bolts through so that the threaded ends and nuts thereon were in the spaces between the movable rail and the main rail and extended for a distance of one-half to three-fourths of an inch, the whole forming an unprotected "V-shaped" space with these tooth-like projections. Plaintiff's husband had been an employee of the railway company for some six weeks as a switchman in the yards at Hiawatha, and, while in the performance of his duties as such switchman, his foot became fastened in this switch and he was unable to extricate himself, so that he was run over by an engine and injured, from which injury he died. After plaintiff had rested her case, defendant's demurrer to the evidence was sustained and judgment went against her for the costs. Her motion for a new trial was overruled and she brings her action to this court.

In the language of the plaintiff, the main question in this case is, "Was the demurrer of the defendant in error to the evidence properly sustained?" The duty of a railway company to its employees is not that of an insurer of the absolute safety of its appliances. Its duty in this respect is discharged when it exercises ordinary care to make and keep working appliances and places reasonably safe for use. At the best the employment is a dangerous one, and the safety of the employees depends, perhaps, more largely upon their own care and caution than upon the furnishing of perfect appliances on the part of the employer; at least, it is well settled that an employee seeking to recover must prove actionable negligence on the part of the employer. This negligence cannot be left to the jury to assume; it must appear by the evidence. In the absence of a statute to that effect, there is no presumption of negligence arising out of the fact of the occurrence of the accident. We have examined the evidence in this case and are unable to discover the proof which would warrant the jury in finding actionable negligence therefrom.

The actual character of the construction of this switch fully appears, but that such construction tends in any way to prove negligence on the part of the defendant we are unable to see. No attempt was made to show that the use of a split switch was dangerous, or considered by any one posted in such matters to be so. On the contrary, it appeared from the evidence that such switches were to be preferred to others of less approved...