Palmer v. The Midland Valley Railroad Company

• Decision Date: 09 May 1925
• Docket Number: 25,919
• Citation: 118 Kan. 507,235 P. 853
• Parties: NOAH PALMER, Appellee, v. THE MIDLAND VALLEY RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

235 P. 853

118 Kan. 507

NOAH PALMER, Appellee, v. THE MIDLAND VALLEY RAILROAD COMPANY, Appellant

No. 25,919

Supreme Court of Kansas

May 9, 1925

Decided January, 1925.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Federal Employers' Liability Act--Contributory Negligence. In an action based upon the federal employers' liability act to recover damages for personal injuries sustained in the derailment of a hand car the proceedings considered, and held: (a) The danger confronting plaintiff was not so obvious, imminent and immediately threatening as to make it clearly imprudent for him to continue in the line of his duty. (b) It was not error to overrule defendant's demurrer to the evidence. (c) There was no error in refusing to give the instructions requested by the defendant, nor was there any prejudicial error in the instructions given. (d) Other alleged errors considered and held not to be of substantial merit.

Albert Faulconer, Kirke W. Dale, C. L. Swarts, all of Arkansas City, F. S. Jackson, of Topeka, and O. E. Swan, of Muskogee, Okla., for the appellant.

W. L. Cunningham, and D. Arthur Walker, both of Arkansas City, for the appellee.

OPINION

HOPKINS, J.:

The action, based upon the federal employers' liability act, was one to recover damages for personal injuries sustained by the plaintiff on account of the derailment of a hand car. The plaintiff recovered, and defendant appeals.

The plaintiff was a section foreman for the defendant, having charge of seven miles of the defendant's railroad near the town of Hardy, Okla. In the pursuance of his work he used a motor car and a push car furnished by the defendant. (Plaintiff owned the motor.) Both cars had been out of repair for some time prior to the accident. The evidence showed that the cars needed boxings and brasses for the boxing; that the wheels were out of alignment; that one of the axles was bent; that the worn-out boxes and bent axle tended to cause the wheels to climb the rails and leave the track. Plaintiff notified his superior officer, the roadmaster (Graham), of the condition of the cars, and requested repairs for them. Graham promised to furnish the necessary repairs. Some days before the accident the plaintiff's wife, in his presence, told Graham that if she were in her husband's place she would put the hand car in the tool house and let it stay there until they furnished the repairs. Graham replied, "Well, if he did he would lose his job." He further stated that "if Mr. Palmer (plaintiff) would go ahead and use the motor car he would furnish repairs as soon as he could get them"; that "it was safe to use the car"; that "it was necessary to do so"; and that "he (plaintiff) would have to use it even if he had to walk and push it."

On the day of the accident, about four o'clock in the afternoon, Graham came to the place where the plaintiff and the section men were working near the north or west end of the section; ordered them to "load the car and trailer and to go to the east end and fix up a bad place"; to "get the car on and hurry over there." At this time he (Graham) brought and delivered to the plaintiff the repairs for the car. In accordance with such directions, the hand car and trailer were loaded and started to the east end, the trailer being attached by rope. They had gone about a quarter of a mile, were running at about twelve miles an hour, when the derailment occurred which resulted in plaintiff's injury and the death of another member of the crew. In the derailment the section men were thrown forward upon the ballast, which consisted of rocks ranging from the size of one's fist to the size of a man's head, both outside and inside the track. The plaintiff, among other things, testified that while the boxing and various parts of the hand car and trailer were worn, he "did not consider it in a dangerous condition, or dangerous to use"; that he "did not believe anyone would get killed or hurt by the use of the car."

Graham, among other things, testified that whatever he told Palmer to do he had to do; that Palmer complained about the car; said it needed some brasses and boxing in line of repairs. He said, "I promised to get them for him." Referring to conversation with Mrs. Palmer, he said, "I told them they would have to go ahead and use the motor car even if they had to get out and push it instead of using the pump car, because it is easier on the men and faster. I wanted them to understand that I wanted them to use it."

The plaintiff sued for $ 25,000. The jury awarded him $ 2,500, and answered special questions as follows:

"1. Were the cars in question defective at the time the accident occurred? A. Yes.

"2. If you find the cars were defective, how long had such defects existed? A. Thirty days.

"3. Did the plaintiff have equal opportunities with the defendant to know of any defects in the cars and any dangers incident thereto? A. Yes.

"4. If you find that the cars were defective, were the defects such as to make them unsafe and dangerous to operate? A. Yes.

"5. Did plaintiff report to the defendant that the cars were defective? A. Yes.

"6. If you find that the plaintiff had reported to the defendant that the cars were defective, when did he do so? A. During July and August.

"7. If you find that the plaintiff had reported to the defendant that the cars were defective, had a reasonable time within which to repair them elapsed before the accident occurred? A. Yes.

"8. If you find that the cars in question were defective and that plaintiff had equal opportunities with the defendant to know of such defects and appreciate the danger incident thereto, please state whether the plaintiff was negligent in continuing to use and operate the same? A. Yes, and defendant also."

The defendant admitted that the cars were defective; that the defects made them unsafe and dangerous to operate. It contends, however, that the plaintiff had equal opportunities to know of the defects and dangers incident to the operation of the cars; that a reasonable time within which to repair had elapsed before the accident had occurred, and that the plaintiff was barred from recovery because negligent in continuing to use the cars; that he assumed the risk. It argues that a servant assumes the risks arising out of the master's negligence when he knows of such negligence and the risk created thereby; that there is, of course, the exception that, where a defect is not such as to make it dangerous to continue in the service, and there is a report or complaint and a promise to repair, the servant may, in reliance upon such promise, continue in the service for a reasonable length of time for repairs to be made, but if repairs are not made within such reasonable time he again assumes the risk; that, not only did the defects render it dangerous to continue using the cars, as to which defects plaintiff had full knowledge and as to which he made a report and secured a promise to repair, but he negligently continued to use the cars in their defective and dangerous condition, not only during the time reasonably required within which repairs could be made, but after such reasonable time to repair had elapsed.

On the other hand, plaintiff contends that he did not assume the risk; that he complained of the condition of the car; that the defendant promised to repair it; that plaintiff relied upon the promise; that he used the car in obedience to the command or orders of his superior officer, on assurance of its safety; that he may or may not have been guilty of contributory negligence. If he was, under the finding of the jury, that fact was taken into consideration in mitigation of his damages. He argues that he should not be held to have assumed the risk unless it appeared that the danger was both obvious and imminent.

From a multitude of authorities cited by the parties to sustain their respective contentions, we conclude that the case turns on the question whether, under all the circumstances, the danger was so obvious, imminent and immediately threatening as to make it clearly imprudent for the plaintiff to continue in the line of his duty. Imminent danger is such danger as must be instantly met, which cannot be guarded against by calling on others for assistance. It occurs when the peril is manifest--that is, unquestionable--and is such as to constitute, at the time, an emergent danger. (Coffin v. Blackwell, 116 Wash. 281, 199 P. 239.) See, also, Kessler & Co. v. Southern Ry. Co., 255 S.W. 535, 200 Ky. 713, where a distinction was recognized between acts which constitute negligence and acts which amount to confronting imminent and obvious danger.

In Anderson v. Fielding, 92 Minn. 42, 46, 99 N.W. 357, it was said:

"A servant is not chargeable with the assumption of the risk or with...