McCallion v. Company

• Decision Date: 08 December 1906
• Docket Number: 14,798
• Parties: PETER C. MCCALLION v. THE MISSOURI PACIFIC RAILWAY COMPANY et al
• Court: Kansas Supreme Court

88 P. 50

74 Kan. 785

PETER C. MCCALLION v. THE MISSOURI PACIFIC RAILWAY COMPANY et al

No. 14,798

Supreme Court of Kansas

December 8, 1906

Decided July, 1906.

Error from Butler district court; GRANVILLE P. AIKMAN, judge.

STATEMENT.

THE Missouri Pacific Railway Company owns and operates a line of railway into and through Butler county, with a side-track leading to a stone-quarry and crusher which are owned and operated by Frazier and Vanderhoof. Plaintiff in error, Peter C. McCallion, was in the employ of Frazier and Vanderhoof working in and about the quarry and crusher. It became a part of his duty to run ballast-cars down the side-track to the crusher. The grade of the side-track leading to the crusher was descending, and brakes were required on the ballast-cars to stop them and hold them in position. The cars were placed on the side-track by the railway company, and when needed for use in loading were managed and controlled by the employees of Frazier and Vanderhoof.

Plaintiff in error brought this action against the owners of the quarry and the railway company for injuries received by him while operating one of the ballast-cars. His petition alleged among other things, that the cars, after being placed upon the side-track by the railway company, were brought down the side-track to the crusher by the force of gravity, when needed to be loaded; that on the 20th of April, 1903, he started down with one of the cars toward the crusher; that immediately after starting the car he saw another ballast-car on the side-track, at the crusher, with a man standing thereon; that he attempted at once to stop his car by putting on the brake; that the brake was defective in not having any brake-chain, so that his attempt to stop the car by means of the brake failed; that he then jumped from the car to the ground and seized a pinch-bar, an appliance furnished him by his employers, which was used for starting and stopping cars and attempted to stop the car by placing the pinch-bar between the wheel of the car and the rail, but the car had acquired such a momentum that it ran over the pinch-bar causing it to strike his foot with such violence as to break his foot and ankle, and the car ran over and upon his right leg, crushing it so that amputation was necessary.

It was alleged that the injury was caused wholly by the negligence of defendants in supplying a car with a defective brake, and that the defendants Frazier and Vanderhoof, the owners of the quarry, each personally knew of the defects in the ballast-car on the day prior to the occurrence of the injury, and that the defendant railway company had a reasonable opportunity to know of the defects at the time the car was placed on the side-track.

Separate demurrers were filed by the railway company and the other defendants, both of which were sustained. Plaintiff elected to stand upon his petition, and brings this proceeding in error.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DAMAGES--Liability to Injured Servant of One Furnishing Defective Car to the Master. A railway company which furnishes a defective car to the employer of another is not liable in damages for injuries to the servant of the employer caused by such defect, when the employer knew of the defect in time to have repaired the same or to have warned the servant, but neglected to do either.

2. DAMAGES--Contributory Negligence -- Emergency -- Perilous Alternative. It is not contributory negligence, as a matter of law, for one who is placed in a dangerous position by another's negligence to adopt in a sudden emergency a perilous alternative in an endeavor to avoid danger to himself or to others, although it may turn out that he should have acted differently.

N. W. Bowman, and John D. Davis, for plaintiff in error.

J. H. Richards, C. E. Benton, and Mooney & Stratford, for defendants in error; Hamilton & Leydig, of counsel.

PORTER J. All the Justices concurring.

OPINION

PORTER, J.:

The motion to dismiss the proceeding on the ground that the case-made was not served within the time required by law is disposed of by the case of Gerdom v. Durein, ante, p. 704.

We will first consider the demurrer of the railway company. It is argued that as plaintiff in error was not in the employ of the railway company it had no control over his actions, and that the negligence charged against the railway company upon the ground of the defective brake on the ballast-car is not sufficient to constitute a cause of action against it. The contention is that the causal connection between the negligence alleged on the part of the railway company and plaintiff's injury was broken by the alleged negligence of plaintiff's employers. In other words, assuming that the railway company was negligent in furnishing a defective car to Frazier and Vanderhoof, it is said that its negligence could not have been the proximate cause of the injury. The petition shows that the employers of plaintiff had taken possession of the defective car at the time he was injured, and it is argued that under the allegations of the petition and the law of master and servant the masters were responsible to the servant, and their negligence was the proximate cause of the injury.

In Railway Co. v. Merrill, 65 Kan. 436, 70 P. 358, 59 L. R. A. 711, 93 Am. St. Rep. 287, a brakeman in the employ of one railway company was injured by a defective car furnished to his employer...