McGolderick v. Wabash Railway Co.
| Decision Date | 31 December 1918 |
| Parties | AMANDA McGOLDERICK, Respondent, v. WABASH RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Schuyler Circuit Court.--Hon. N. M. Pettingill, Judge.
Judgment affirmed.
J. L Minnis, N. S. Brown and Higbee & Mills for appellant.
A. D Morris and Fogle & Fogle for respondent.
This is a suit for personal injuries. Plaintiff recovered a judgment for three thousand ($ 3000) dollars, and defendant has appealed.
Defendant urges that a demurrer to the evidence should have been sustained. A disposition of this point necessitates a detailed statement of the evidence taken in its most favorable light to plaintiff. This evidence shows that on the 11th day of August, 1916, plaintiff and her little daughter went from their home to Glenwood, Missouri, and later in the day they returned. About the time she reached defendant's track on the return trip her horse became frightened at a grindstone situated about thirty-five (35) feet west, or on the opposite side, of the railroad track and about six (6) feet south of the traveled portion of the road. The evidence showed that one Martin had a contract with the defendant for cutting vegetable growth from its right of way for a distance of about six miles along the railroad in the vicinity of where the grindstone stood; that the stone that morning had been at another place and that Martin had requested defendant's section men to move it on their handcar, which was accordingly done, to the place where it frightened plaintiff's horse. Martin testified that he had the grindstone placed there for the purpose of grinding his sickle, which was being used in cutting off the right of way. The grindstone was placed there about 10:00 o'clock that morning. The accident happened about 4:00 o'clock of the same day.
The evidence shows that there was a wagon placed in the road between the grindstone and the railroad tracks. The grindstone was about eight feet west of the wagon. The stone was about 16 to 18 inches in diameter and stood on an iron frame about four feet high; there was a water funnel suspended above the stone, a treadle attached to the frame with which to turn the stone, and a seat on the frame. It was an old grindstone and such a one as is commonly used by farmers. It belonged to Martin.
Plaintiff went to Glenwood about 2:00 o'clock in the afternoon in question and when the horse passed the grindstone on the way to town it shied at it and Martin, who was then grinding his sickle, started toward plaintiff when she hit the horse a lick and drove him by the grindstone and on to town. The grindstone was on the west, or opposite side, of the railroad from the town of Glenwood and the railroad at the crossing was located on ground about ten to eleven feet higher than the ground to the east. Plaintiff testified that when they arrived at a point, on the opposite side of the railroad crossing from the grindstone, where the horse could see over the apex of the embankment, he shied and whirled around and ran back for one hundred (100) feet where he stopped and began to eat weeds. When the horse became frightened and whirled around it threw plaintiff out of the buggy causing the same to run over her to her severe injury. A mail carrier came along after the accident and got into plaintiff's buggy and drove the horse by the grindstone. The horse again became frightened at it and the mail carrier hit the horse and made him go by. The horse was described as a very gentle horse, would stand without hitching and could be driven safely by a child. On the day following, the grindstone had been moved to Glenwood Junction and here two horses, being driven by a lady, shied at it.
It is urged by the defendant that Martin was an independent contractor and that its section men in placing the grindstone at the point in question were acting without the scope of their employment and were voluntarily doing a work of convenience for Martin. However, even if these things were true (matters we do not pass upon), we do not believe that defendant can escape liability in this case. It was the duty of the defendant to keep down the undergrowth along its right of way. This duty was imposed upon it by statute, section 3150, Revised Statutes 1909. Under these circumstances it could not escape liability for injuries to persons caused by the negligence of an independent contractor in doing the work, and therefore it was liable for the acts of Martin in placing the grindstone at the place in question. [Peters v. Railroad, 150 Mo.App. 721, 735-736; Jackson v. Butler, 249 Mo. 342; 26 Cyc. 1562; 2 Elliott on Railroads (2 Ed.), page 866; Chicago Economic Fuel Gas Co. v. Myers, 48 N.E. l. c. 69.] In the latter case it is held that even though a person who causes the injury is an independent contractor he will be regarded as the servant or agent of the corporation for whom he is doing the work where it is shown that the independent contractor in doing the work was exercising some charter privilege or power of the corporation. And in the case at bar we believe that Martin was the servant of defendant in the cutting of the undergrowth on its right of way.
Defendant urges that this was an ordinary grindstone and it says that the leaving of such a grindstone at the side of the road is of common occurance and that there was no evidence tending to prove that the grindstone was calculated to frighten a horse and that the fright causing plaintiff's injury must have been caused by some freak of the...
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