McQueen v. The Central Branch Union Pacific Railroad Company

• Decision Date: 01 July 1883
• Citation: 30 Kan. 689,1 P. 139
• Parties: ROBERT D. MCQUEEN v. THE CENTRAL BRANCH UNION PACIFIC RAILROAD COMPANY
• Court: Kansas Supreme Court

1 P. 139

30 Kan. 689

ROBERT D. MCQUEEN v. THE CENTRAL BRANCH UNION PACIFIC RAILROAD COMPANY

Supreme Court of Kansas

July 1, 1883

Error from Atchison District Court.

ACTION by McQueen against The Railroad Company, to recover damages for bodily injuries. Trial at the June Term, 1881, and judgment for defendant. The plaintiff brings the case here. The facts are stated in the opinion.

Judgment affirmed.

H. M Jackson, and Tomlinson & Griffin, for plaintiff in error.

Everest & Waggener, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Action for personal injury. The court instructed the jury upon the facts proved upon the trial, that the plaintiff was not entitled to recover, and directed the. jury to return a verdict for the company.

The principal question in this case is, whether the plaintiff was a passenger, or entitled to the rights of a passenger, at the time of his injury. The facts are substantially these: The plaintiff, on June 6, 1878, was, and for a year prior thereto had been, in the employ of the railroad company, painting depots, bridges, tanks and switches; part of the time working in the city of Atchison, and part of the time along the line of the road. In the early part of June, 1878, he started for Waterville, accompanied by the engineer, on a small steam hand-car used only by the officers and employes of the railroad company. The car was propelled by steam, and was something after the shape of a hand-car. It had two pairs of wheels which were about eighteen inches in diameter connected by a rod or crank, and were the ordinary width of the track; the front pair was about two and one-half or three feet from the rear pair; there was a horizontal steam engine of three horse power very near the center, about the size of a small stove; the boiler rested in an up-right position, and was about two feet in diameter; the coal box was situated on the left of the boiler; there was a water tank under the rear seat; the car had two seats, one on the front and one in the rear. The plaintiff painted the up-rights of the switchboards at all the stations on his way to Waterville. On the morning of the 6th of June, 1878, he started from Waterville in the steam hand-car to return to Atchison, and in coming into Netawaka, as the steam hand-car passed in on the side track, the car jumped the track. Plaintiff was thrown some ten or twelve feet, his face striking the ground, and the car falling upon his ankle or foot. After being injured, he did not stop to discover the cause of the car jumping off the track, but rode into Atchison on the same car.

The evidence did not disclose any contract between the plaintiff and the company for his transportation over the road, but it is clear therefrom that he was carried from station to station upon the road so that he might discharge the duties of his employment. Upon the facts proved, the plaintiff was merely an employe of the railroad company, riding upon the road in the steam hand-car in consequence of his employment, and, as an employe, paying no fare. He was not a passenger, within the true sense of that term, and not entitled to the rights of a passenger. (Sherman and Redfield on Negligence, 101-127; 1 Redfield on Railways, 520-537; Railway Co. v. Nichols, 8 Kan. 505; Railway Co. v. Salmon, 11 id. 83.)

Counsel for plaintiff say, however, that even if the plaintiff was not a passenger on the steam hand-car at the time of the injury, yet that he is entitled to recover damages, because there was some evidence showing that...