Lupher v. The Atchison

• Decision Date: 09 March 1912
• Docket Number: 17,487
• Citation: 86 Kan. 712,122 P. 106
• Court: Kansas Supreme Court
• Parties: JAY LUPHER, a Minor, etc., Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

122 P. 106

86 Kan. 712

JAY LUPHER, a Minor, etc., Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 17,487

Supreme Court of Kansas

March 9, 1912

Decided January, 1912.

Appeal from Neosho district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Question of Fact for Jury. Whether or not an accident was caused by the negligence of the defendant is an inference of fact for the jury to determine, and not of law for the court, notwithstanding the evidence may be contradictory, uncertain, and confusing.

2. NEGLIGENCE--Same. In this case it is held that the plaintiff's account of the way in which the accident occurred can not be said as a matter of law to be inherently improbable.

3. NEGLIGENCE--Dangerous Place--Complaint -- Promise to Repair--Assumption of Risk. The plaintiff, a brakeman was injured while throwing a switch by reason of conditions which made the place unsafe. Three weeks before the accident he complained to the division roadmaster that the conditions at the switch made it unsafe. The evidence was that the roadmaster said "He knew it was n't a very nice place there and not any too safe and they were going to fix it up when they could get to it and make a double track . . . and we would head in there and not have to make that switch." Held, a sufficient complaint and promise to relieve plaintiff of the assumed risk.

4. NEGLIGENCE--Same. Upon the facts stated in the preceding paragraph, held, that the division roadmaster stood in relation to the plaintiff as a vice principal of the defendant and that whether or not plaintiff was warranted in relying upon the promise was for the jury.

5. NEGLIGENCE-- Same. The question whether or not under all the circumstances of this case the time which elapsed between the promise and the accident was a reasonable time for the performance of the promise was for the jury to determine.

6. NEGLIGENCE-- Same. Where complaint is made and the servant is assured that it is the intention of the master to remove the danger, and, relying upon such assurance, the servant continues in the work, the fact that the master had other reasons than the safety of the servant for making the change, or that before the complaint he had intended to make it, will not render the promise ineffectual.

7. VERDICT--Excessive Amount--Passion or Prejudice. The court refused to approve a verdict for $ 17,000 for the loss of a leg, and required the plaintiff to remit $ 4,000, rendering judgment for $ 13,000. Held, there being nothing to show that the excessive amount was caused by passion or prejudice of the jury, the judgment will not be set aside.

William R. Smith, Owen J. Wood, and Alfred A. Scott, for the appellant.

H. P. Farrelly, and T. R. Evans, for the appellee.

PORTER J. PORTER, J., dissenting, WEST, J., concurs in this dissent.

OPINION

PORTER, J.:

The plaintiff, while in the discharge of his duties as brakeman, was run over by an engine, and his left leg was so badly crushed as to require amputation midway between the knee and the hip. He alleged that the injury was caused by the negligence of the defendant in furnishing a dangerous place in which to perform his work. The jury returned a verdict in his favor for $ 117,000. The court overruled a motion for a new trial upon condition that plaintiff would consent to a reduction of $ 4000. The plaintiff filed his written consent thereto and judgment was entered in his favor for $ 13,000. The defendant appeals.

The plaintiff was injured on July 30, 1906, about two o'clock in the morning. He was head brakeman on a freight train approaching the city of Chanute, and was riding on the engine. His duties required him to get down from the engine before reaching the switch, run ahead, and throw the switch, so that the train could head in on the siding without stopping on the up grade. The manner in which plaintiff claims that the accident occurred is set out in his petition as follows:

"The position and arrangement of the switch stand were such that the position of plaintiff, after having thrown the switch, was in close proximity to the track upon which said engine was coming, and in the efforts of the plaintiff to protect himself from injury, and to get away from said engine, by reason of the dangerous condition of said track, the ties thereunder, the location of said switch stand, the approach thereto and its surroundings, and the condition of the surface of the ground, all of which were in an improper and dangerous condition, the plaintiff in making an effort to escape from said engine, slipped and stumbled over the ties, mud and irregular surface of the ground, and fell upon the track in front of said engine."

The evidence is not at all clear as to how the plaintiff, while throwing the switch, fell across the track in front of the approaching engine; nor is it clear from either the petition or the evidence what particular defect in the condition of the track, roadbed, ties or switch stand caused him to fall. The railway company claimed at the trial and offered evidence tending to show that he fell from the pilot of the engine while attempting to board the engine as it passed him, contrary to the rules of the company, and that his own negligence in this respect was the sole cause of his injury. The defendant's evidence on this question was wholly circumstantial; no one on the engine saw him fall. There was evidence showing that the pilot step was muddy, indicating that some one with mud on his feet had used it, and also evidence that the first place on the track where blood was found was on the west rail of the track seven feet south of the head-block. The train was moving south at the time of the accident and the switch-stand was west of the track. The engineer testified that after the switch was thrown he received from plaintiff what he thought was a signal to come ahead, that he saw a light a foot or so from the ground which he supposed to be plaintiff's lantern moving toward the track, that he saw it just ahead of the pilot beam and then it suddenly went out. Doctor Barker and brakeman McGlasson, witnesses for the defendant, testified that the plaintiff, in answer to an inquiry of the doctor, stated that he tried to get on the pilot and slipped off.

The plaintiff's own testimony of how the accident occurred is as follows:

"In coming down to the switch from the north you would have to walk in the middle of the track or get out into the muddy ditch. The lever that manipulated the switch was about two feet long. In order to throw the switch so as to put the train on the west siding you had to push the lever towards the east, towards the rail. That would be towards the train. . . . I left the engine about fifty feet north of the switch. The engine was running about five or six miles an hour at that time. The ditch was muddy and wet and rough. The lever that I had to use was on the south side of the switch-stand and I had to pass around the switch-stand. The switch was locked. I unlocked it and turned it around towards the east and threw it in this way. I had to come down against it with my weight, in fact I had my knee on the head of the lever. I shoved it in front of me to the east side. When I got to the east side and shoved it down in there and threw my weight on it with my knee, I went to straighten up and slipped and stumbled off of those ties kind of backwards, this way (illustrating). I fell towards the east and south and stumbled on one of the ties that was on the rails and fell on the track and I tried to get up but my hands slipped and went between the ties and before I could get up and get away the engine caught my foot and injured my leg. I fell in a southeasterly direction. The engine was approaching me when I lay on the track. I tried to get out of the way of the engine. I used every exertion I could to get off the track. When I speak of my hands, of my hands going off of the ties, I was kind of face down at that time with my hands on the ties and my hands slipped and went in between the ties and before I could get away it ran over my foot and leg."

Counsel for defendant contend that plaintiff's account of how the accident occurred is inherently improbable. In their brief they say:

"He states that while standing on the east side of the switch he fell backwards in a southeasterly direction. This would throw his head toward the track and his feet away from the track. He states that when he tried to get up his hands slipped and went between the ties and before he could get up and get away the engine caught his foot and injured his leg; that he was kind of face down with his hands on the ties and before he could get away it ran over his foot and leg, but he got his body off. It is impossible to understand from this description how his legs, which must have been extending away from the track, could get under the engine wheels; nor, if he fell backwards, how he came to be lying face downwards. If he fell with his head toward the track with his hands between the ties, all he had to do was to push the upper part of his body away from the track and his whole body, legs, feet and all, would have been clear of the track."

The switch stand appears from the evidence to have been no different from those usually found at such places, and the defendant insists that there was no testimony showing that it was not wide enough for a man to stand upon and throw the switch without falling off, or that ample room was not afforded on the platform between the switch stand and the track for a man to stand without being struck by a passing engine or train. The following excerpt from the brief will explain, better than any statement we can give, the theory of plaintiff's counsel as to how...