McDermott v. The Atchison
| Decision Date | 11 January 1896 |
| Docket Number | 8009 |
| Court | Kansas Supreme Court |
| Parties | MARY MCDERMOTT v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY |
Decided January, 1896.
Error from Lyon District Court.
THE plaintiff in error brought this action as the widow of Charles McDermott, deceased, alleging that he was employed as a brakeman by the defendant company, and that he was killed on the 22d of July, 1890, through the negligence of the defendant's servants. It is alleged that the deceased had been employed as brakeman for about two weeks, and that prior to that time he had had no experience as a brakeman and knew nothing about the dangers incident to such employment, and especially the dangers connected with making a flying or drop switch. It is alleged that on said day the deceased, acting as head brakeman, was required to go between the engine and a freight-car and uncouple the same in order to make such switch; that, in making the same, the engine and car passed over a crossing of the Chicago, Kansas & Nebraska railroad, thereby rendering his duty extra-hazardous; that he was ignorant of the dangers connected with his duty; and the particular negligence relied on and charged against the company is, that the engineer, without notice to McDermott ran with great, unusual, unnecessary and dangerous speed over the crossing of said Chicago, Kansas & Nebraska railroad for the purpose of making the switch. McDermott, as the car went over the crossing, was jostled from his position on the car, fell in front of it, was run over and killed. The jury trying the case brought in a general verdict in favor of the plaintiff for $ 5,000, and also answered special questions submitted by both parties. From the answers to questions submitted by the plaintiff, it appears that the only railroad experience McDermott ever had was three days in June and 10 days in July; that the car on which he was standing when it struck the Rock Island (i. e., C. K. & N.) crossing was going at the rate of 12 to 15 miles per hour; that the officer who employed McDermott was informed that he had had no railroad experience; that it was McDermott's duty as front brakeman to make the flying switch ordered by the conductor; that the speed at which the car he was on went across the Rock Island track was greater than was necessary in order to make the drop switch; that he was jostled off the brake-beam, where he was standing, and thus killed, by reason of the fact that the car was going at a high and unnecessary rate of speed; that the engineer controlled the rate of speed; that neither the officers who employed McDermott nor any of their agents ever informed him of the dangers incident to making such a switch. From the answers to questions submitted by the defendant, it appears that McDermott voluntarily, on his own application, was employed by the defendant as a brakeman on the 26th of June, 1890; that the accident which caused his death occurred in the daytime; that he understood and knew the duties of a freight brakeman; that he had passed over the Rock Island crossing twice on the day of the accident, and knew where the crossing was; that he knew what his duties would be in making a flying switch; that the...
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