Quilantan v. The Union Pacific Railroad Company and Walker D. Hines
Decision Date | 07 May 1921 |
Docket Number | 23,150 |
Parties | CARLOS QUILANTAN, Appellant, v. THE UNION PACIFIC RAILROAD COMPANY and WALKER D. HINES, as Director General of Railroads, Appellees |
Court | Kansas Supreme Court |
Decided January, 1921.
Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. NEGLIGENCE--Injury to Trackman--Assumption of Risk. The facts disclosed by the plaintiff's own testimony show that in remaining on the track until struck by the defendants' engine, he took his chances--assumed the risk.
2. SAME--No Actionable Negligence of Defendants Shown. The record also shows that the defendants were not guilty of negligence in failing to warn the plaintiff of the approach of the train which injured him.
3. SAME--Instructions. No error is found in the instructions given.
Charles E. Thompson, and H. F. Gorsuch, both of Kansas City, W. W. McCanles, F. M. Kennard, and S. L. Trusty, all of Kansas City, Mo., for the appellant.
R. W. Blair, T. M. Lillard, and O. B. Eidson, all of Topeka, for the appellees.
The plaintiff sued under the Federal employer's liability act to recover for an injury caused by being struck by one of the defendants' engines. He recovered, but the court set the verdict aside and rendered judgment for the defendants. The plaintiff appeals and assigns as error certain instructions given, rendering judgment for the defendants on the findings of fact, and the refusal of a new trial.
He alleged that he was a trackman in the employ of the defendants, the railroad company and the director general, working upon the railroad tracks at Topeka, cleaning and repairing them, when one of the defendants' freight trains carelessly, negligently and without warning to plaintiff was carelessly run against him, knocking him down and crushing his left leg so that it was amputated about four inches below the knee; that when the train was approaching, those operating it gave him no warning of any kind; that they knew or in the exercise of reasonable care should have known that he was working upon the track; and that they negligently failed to inform him that such train would pass along the track and negligently failed to provide means of notifying him thereof when they knew or should have known that in conducting his business he could not do the work required of him and at the same time watch in both directions for the approach of trains. He further alleged that they saw him in a place of danger, or by the exercise of reasonable care should have seen him, and had an opportunity to warn him of their approach in time to avoid injury, but they carelessly failed to stop the train or reduce its speed when they knew, or by the exercise of reasonable care should have known, that if they continued to operate it at the rate it was going, it would strike and injure the plaintiff.
The plaintiff testified that he was fifty-two years old.
On cross-examination he testified:
Other witnesses testified that the plaintiff was standing not between the rails of the track but at one side. The jury found the defendants guilty of negligence consisting in "not sufficient warning and failure to stop the engine."
They also found that the plaintiff was guilty of contributory negligence and that he was not aware of the approach of the engine in time to get off the track before it struck him. They found that he sustained $ 8,000 damages, but, on account of his contributory negligence, they returned a verdict for $ 4,000.
The trial court stated that the findings of the jury amounted to a finding that the plaintiff assumed the ordinary risks of the employment. The court was of the opinion that while he assumed the risk incident to the work, he did not assume the risk of being run down after he was seen in a place of danger and it became apparent that he would not or could not protect himself, and that the evidence did not warrant submitting to the jury the question of last clear chance.
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