Martin v. The Atchison

• Decision Date: 09 January 1915
• Docket Number: 18,998
• Court: Kansas Supreme Court
• Parties: H. A. MARTIN, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

145 P. 849

93 Kan. 681

H. A. MARTIN, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 18,998

Supreme Court of Kansas

January 9, 1915

Decided. January, 1915.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FEDERAL EMPLOYERS' LIABILITY ACT--Brakeman Acting as Fireman--Scope of Employment--Defective Tire--Negligence--Injuries to Brakeman--Evidence--Findings. In an action under the act of congress known as the federal employers' liability act, brought against a railway company by a brakeman of a freight train to recover for injuries, it was shown that the conductor directed the plaintiff to go forward and act as fireman while he himself took charge of the locomotive for the purpose of allowing the regular engineer and fireman to go to the caboose and eat their dinner. It was shown that while obeying the order of the conductor the plaintiff received injuries resulting in consequence of the conductor's negligence in managing the locomotive. Held:

(a) In the absence of any rule of the company prohibiting the conductor from giving or a brakeman from obeying such an order, the conductor had authority to order the plaintiff to act as fireman, and in obeying such order the plaintiff was acting within the scope of his employment.

(b) Under the federal employers' liability act the railway company is liable for the negligence of the conductor in the management of the engine.

(c) The evidence is sufficient to sustain a finding that the plaintiff had not assumed the risk, and that he was not guilty of contributory negligence in obeying the conductor's orders.

(d) Certain special findings, when considered in the light of the evidence, the contentions of the parties and all the facts and circumstances of the case, are held not to be so inconsistent with each other or with the general verdict as to authorize the granting of a new trial.

2. SAME.--Defective Tire--Caused by Mismanagement of Engine--No Notice to Company Required. The petition alleged that the injuries of the plaintiff were caused by a defect in the tire of one of the drive wheels of the locomotive; that it was loose, and had been in that condition for a sufficient length of time to charge the company with notice thereof. The jury found that it became defective by the improper use of the brakes by the conductor while acting as engineer, and that this occurred but a few moments before the injury to the plaintiff. Held, that since the special findings and the evidence show that plaintiff's injuries were caused by the negligence of the conductor, the company is liable irrespective of any notice it may have had of the condition of the tire.

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

S. B. Amidon, and Jean Madalene, both of Wichita, for the appellee.

OPINION

PORTER, J.:

In this action the plaintiff recovered damages for personal injuries, and the defendant appeals from the judgment.

The plaintiff was the rear brakeman of a freight train, running from Dodge City to Newton, and at the time he was injured the train upon which he was at work was engaged in hauling interstate shipments. The crew consisted of the conductor, engineer, fireman, and a head and rear brakeman. The train was made up of sixty-two freight cars. Just before the train left Larned, which is twenty-two miles west of Great Bend, the conductor directed the plaintiff to go forward and act as fireman of the engine, while he himself took charge of the engine and acted as engineer from that point to Great Bend, for the purpose of allowing the regular engineer and fireman and the head brakeman to go to the caboose and eat their dinner. It required forty-five minutes to run from Larned to Great Bend. The plaintiff testified that when he and the conductor finished eating their dinner the conductor said, "You can go to the head end; you and I will take charge of the engine and let the engine crew come back and eat."

"I obeyed instructions. . . . When we got to the head end he told me to get up and finish taking water for the fireman; then he told me to fire the engine from there to Great Bend. . . . It must have been about 2:30 when I got on the engine at Larned. . . . As we turned the curve going into Great Bend the conductor said he heard a noise and asked me to look and see if I could see anything dragging. I looked and told him I couldn't see anything. He says, 'Get down on the step and look.' I told him as soon as he shut off for town I would. As he shut off for town I turned on the blower and got down on the step and I was looking. As we hit the passing track the tire came off and hit the blow-off cock and the blow-off cock hit my leg and knocked me off the step."

He also testified:

"Neither the engineer nor the fireman nor the head brakeman objected to the conductor and me relieving the engineer and fireman and letting them go back and eat. I didn't object, I didn't dare to. We had done that frequently before."

With reference to the brakes, the plaintiff testified that the conductor looked at them just before going into Pawnee Rock and it showed that the brake was set a little, about four or five pounds, and he released it, and said, "Look how much faster it is picking up the train--how much faster it is going." The other brakeman testified that the exchange of positions on the train was made in order that the rest of the crew might eat their dinners, and that it was done for the interest of the company in order to get over the road; that they had been accustomed to do this under the same conductor; that they had been doing it most of the time that he was on that run, for about a year.

The jury found for the plaintiff in the sum of $ 6000, and returned special findings of fact, including the following, which defendant claims are inconsistent:

"Q. 6. If you find for plaintiff, state the exact negligence of which defendant was guilty upon which you base your verdict. A. 6. Defective tire on right rear driver.

"Q. 7. State the exact defect (if any) in the engine tire and wheel which caused the tire in question to come off. A. 7. Improper use of brakes, causing expansion of tire.

"Q. 8. How long had the defect in the engine tire or wheel in question existed (if at all) prior to the time of the accident? A. 8. Between Pawnee Rock and Great Bend."

Manifestly, the sixth and seventh findings can not, technically speaking, be correct. The improper use of the brake did not constitute a defect in the tire, though there was evidence to sustain a finding that the tire became defective by reason of such improper use. Nor was the defective condition of the tire an act of negligence, but it may have been and the evidence seems to indicate that it was caused by a negligent act in improperly using the brakes. It seems more than probable that the answers to questions 6 and 7 became in some manner transposed. We think the three findings considered together in the light of the evidence, the contentions of the parties, the general verdict, and all the circumstances of the case, should be construed to mean that the improper use of the brakes, causing an expansion of the tire, is the negligence of which the jury intended to find the defendant guilty; that the defect in the tire consisted of an undue expansion caused by such negligent use of the brake; that this defective condition of the tire arose between Pawnee Rock and Great Bend, and that there was nothing wrong with the tire previous to that time. The findings were not attacked by a motion on the part of the defendant, nor a request to have the answers made more specific or definite, nor was judgment asked upon the findings. It does not seem possible that the defendant was prejudiced by the manner in which these answers were returned, nor do we find anything to indicate that the jury were attempting to evade the questions. In view of what we have said, we can not regard the findings as so inconsistent with each other or with the general verdict as to justify the granting of a new trial.

It is insisted that the finding that improper use of the brakes caused an expansion of the tire was wholly speculative, and without any basis in the evidence to support it. The evidence of the plaintiff, in substance, to the effect that for five or six miles after leaving Larned the conductor ran the engine with the brakes partially set; evidence of the defendant that the tire had been inspected the day before, and was not loose when the engine left Dodge City; the evidence of an ex-engineer, who testified that a tire can be made to work loose by using the brakes too much or too severely and sliding the wheels, and all the circumstances in evidence showing the manner in which the accident occurred, furnish a sufficient basis for the finding. While, as suggested, there was nothing to show any sliding of the wheels, there was sufficient evidence to support a finding that the tire became loose as a result of improper use of the brakes.

We discover no fatal variance between the statements of plaintiff's petition and the proof. The allegation that plaintiff was acting in the line of his duty as a brakeman when he stood on the step of the engine is in accordance with the theory upon which the petition was obviously drawn, which is that it was his duty as a brakeman, acting under the control of the conductor, to obey orders, even if that required him to perform temporarily the duties of a fireman. The jury find that the tire became loose between Pawnee Rock and Great Bend. The petition alleged that the tire had been loose two days prior to the accident, and that defendant knew or had opportunity to know of such...