McMullen v. The Atchison

• Decision Date: 10 July 1920
• Docket Number: 22,593
• Citation: 107 Kan. 274,191 P. 306
• Court: Kansas Supreme Court
• Parties: ESTHER I. MCMULLEN, as Administratrix of the Estate of HUGH GALE MCMULLEN, Deceased, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

191 P. 306

107 Kan. 274

ESTHER I. MCMULLEN, as Administratrix of the Estate of HUGH GALE MCMULLEN, Deceased, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 22,593

Supreme Court of Kansas

July 10, 1920

Decided July, 1920

Appeal from Harvey district court; FRANK F. PRIGG, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FEDERAL EMPLOYER'S LIABILITY ACT--Negligence--Death of Brakeman--Killed While in Performance of Duty. The evidence fairly tends to show that the deceased brakeman was, when injured, engaged in the performance of his duty in attending to the air hose on the train then being made up by the switching crew.

2. SAME--Negligence Question for Jury. The record presents a case rightfully submitted to the jury as to the defendant's negligence.

3. SAME--Certain Evidence Competent in Support of Negligence Charged. The charge of negligence in kicking certain cars violently and without warning against the deceased, is held to include the transmission of a wrong signal by a member of the switching crew, which signal was the cause of such violent movement.

4. SAME--Assumption of Risk by Employee. Under the federal employer's liability act assumption of risk does not depend on a danger so glaring that a person of ordinary prudence would not have encountered it, but an employee is not held to have assumed the risk unless the danger is so obvious that an ordinarily prudent person would observe and appreciate it.

5. SAME--Deceased Brakeman Had Not Assumed the Risk of Defendant's Negligence. While it was a frequent thing to make up trains by kicking and shoving cars, the switching crew in this instance knew that some member of the train crew would be required to attend to coupling the air hose on the train being made up, and the deceased is not held to have assumed the risk of the sudden and violent propulsion of the cars against him without warning, under the circumstances shown by the record, and which the jury found was done in a negligent manner.

6. SAME--Instruction--Notice of Deceased's Dangerous Position It was not error to refuse an instruction exonerating the defendant if the switching crew had no notice and were ignorant that the deceased was in a position of danger.

7. SAME--Special Questions. No material error arose by the refusal to require more definite answers to certain specified questions, or the refusal to set aside the answers to certain others.

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

Ezra Branine, and H. W. Hart, both of Newton, for the appellee.

West J. BURCH, J., concurs in the affirmance of the judgment.

OPINION

WEST, J.:

The plaintiff recovered a judgment for $ 10,000 for the death of her husband, alleged to have been caused by the negligence of the defendant in kicking certain cars against those connected with the caboose where he was working. The defendant appeals, and in its brief complains of rulings refusing instructions, denying motions to set aside certain findings and for judgment on the special findings, and refusing a new trial.

The deceased was in the employ of the defendant as a brakeman, and on the morning in question was engaged at Emporia in helping make up a west-bound freight train. The way car and six freight cars coupled together were standing on track No. 4, the way car being attached at the east end of the string, and the deceased was at the east end of the way car. Another part of the train to be made up was propelled against these cars, and in some way the deceased was caught and run over and suffered fatal injuries.

The petition alleged that the death of the deceased was caused by the negligence of the defendant in this: That while he was at the rear or east end of the way car, the defendant, its agents, servants and employees, negligently ran the switch engine with freight cars attached thereto and being shoved at a dangerous rate of speed, and negligently kicked the way car and ran the engine and cars with great force and violence, and without warning, and in a negligent manner against the west portion of the train then made up, thereby negligently causing such portion of the train and way car to be suddenly moved backward and over the body of McMullen.

The train was being made up on a curved track, so that the signals had to be relayed to the engineer, and it is claimed that the trouble arose from the fact that one of the train crew who received a signal to come ahead signalled to the engineer to make a kick, meaning to move his engine rapidly and then suddenly stop so that cars uncoupled from those still attached to the engine would be kicked or propelled violently in the direction in which they had been started.

The defendant filed a general denial, and pleaded contributory negligence and assumption of risk. The jury with their verdict answered several questions and, having been required to retire and answer certain ones more definitely, came in with seventeen findings, one to the effect that the verdict was based on negligence of the switching crew in transmitting signal to the engineer; another that the evidence did not show what the deceased did to protect himself from the time he placed himself in the position where he was struck. As to whether there was anything to prevent McMullen from seeing, hearing and ascertaining that the switching crew were engaged in shifting and moving cars in and about the making up of the train, the answer was:

"McMullen had a right to assume that switching crew knew where he was at that time. No evidence to show that McMullen did not know switching crew were making up train.

. . . .

15. If the come-ahead signal given by switchman Moomaw had been correctly transmitted by the switchman Philips to the engineer, and the engineer had obeyed the signal, would the brakeman Mr. McMullen have been injured? Ans. No.

. . . .

"17. Is it not a fact that switchman Moomaw gave the come-ahead signal and that the switchman Philips transmitted the kick signal to the engineer? Ans. Yes."

The defendant contends that it was guilty of no negligence towards McMullen. It is argued that his presence at the way car was unknown to any member of the switching crew engaged in making up the train; that the way car had been coupled to the switch engine and kicked a number of times before the accident; that McMullen just before the injury was in the way car and knew what the switching crew were doing; and that he was an experienced brakeman and fully understood the manner in which trains were made up. It seems that the duty he had to perform was to connect the air hose on the cars as they were coupled up by the switching crew, and it is beyond dispute that kicking was a common practice of which he, with his two years' experience, was quite well aware. It was equally well known to the switch crew that it was the duty of some one of the train crew to be on hand to attend to this coupling, although it does not appear that they had any knowledge that McMullen was actually the one at work at this time. It was alleged in the answer that it was the duty of McMullen to see that the air hose on the train was in proper condition before the train started, and to attend to the coupling up of the cars therein.

One of the switchmen testified:

"They couple up the air between each of the cars and open up the angle cock. You have to go in between the cars when that is done. That is done by the brakeman when the train is being made up. That is the general rule. As the cars are put in they step in and couple up the air. That is the custom and practice. Our engine crew knew that fact."

It was testified that after the six cars and caboose were kicked down on track 4, a car was kicked to track 5, as it was desired to run the car on the head end of the train, and it was left on track No. 5 temporarily--

"Then we kicked two more towards 4 track. We gave them a little kick to kick them clear of No. 5. . . . Those two cars did not clear track 5. The head car was pointed into 4 and the hind car of the two stopped so that it fouled 5, so that this car couldn't go into 5 without cornering it. In other words the west end of those two cars didn't quite clear track 5. The drag was standing a little west of 5 track about half way between. I would imagine there were about 50 or 70 cars between the end of the drag that we had hold of and the west end of the car that stopped. When we kicked them down in there I stepped on the other side to see if the other cars went to clear No. 5 and I saw that they didn't and I lined the switch back for the lead, and I stepped over on the south side and gave them the sign, to come ahead and shove them into the clear. . . . When I gave the come-ahead signal Philips gave the come-ahead signal. The engineer came ahead and shoved down against those two cars. When we coupled into them I gave the sign to come ahead, to come on in. I saw Philips, he gave them a sign to give them a kick. . . . When the high-ball or kick signal was given by Philips the engineer opened her up and gave it a shot. As quick as I seen the high-ball and seen that the engineer was going to kick them, I commenced to stop him flag him down. I gave a stop sign. . . . After the two cars stopped, and we had come up to them, we intended to shove them in far enough to clear No. 5. . . . The effect of the two cars coming up against the six cars that were standing on track 4 was this, the distance was so short between the string of cars attached to the way car, and the rest that we had hold of after we had coupled in to those, that it hit those cars a pretty hard rap, and it had a tendency to give them a violent jar backwards. I should judge...