Ross v. The St. Louis & San Francisco Railroad Company
| Decision Date | 12 December 1914 |
| Docket Number | 19,068 |
| Citation | 144 P. 844,93 Kan. 517 |
| Court | Kansas Supreme Court |
| Parties | BESSIE C. ROSS, as Administratrix, etc., Appellee, v. THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
Decided July, 1914.
Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.
Order granting new trial affirmed.
SYLLABUS BY THE COURT.
FEDERAL EMPLOYERS' LIABILITY ACT--Personal Injuries--Contributory Negligence Not a Complete Defense--Mitigation of Damages--Instructions. In an action to recover damages for the death of a railroad employee by alleged negligence in switching cars in circumstances to which the federal employers' liability act applied, an instruction was given defining contributory negligence, and in another instruction (No. 6) the court said that if the deceased was guilty of contributory negligence and "that said negligence directly contributed to his injury, you should take said negligence into consideration in arriving at the amount of your verdict as hereinafter explained, if you find from the evidence that the plaintiff is entitled to recover, but if you find from the evidence that the contributory negligence of the deceased, Otto N. Ross, was the sole and proximate cause of his death, then you should find a verdict for the defendant."
A verdict was returned for the defendant, but was set aside and a new trial was ordered "solely on the ground that instruction No. 6 misstates the law in the last part thereof in regard to contributory negligence."
It is held, (1) that the plaintiff had a right to a plain and unambiguous instruction to the effect that contributory negligence was not a complete defense under the federal statute referred to but should be considered in mitigation of damages; (2) that as the language used was doubtful in meaning and confusing, and the presiding judge with full opportunity of observation believed that the instruction did not fairly and sufficiently inform the jury upon a material matter of law, the order granting a new trial will not be reversed.
A. L. Berger, of Kansas City, W. F. Evans, of St. Louis, Mo., W. S. Cowherd, R. J. Ingraham, L. E. Durham, and Arthur H. Morse, all of Kansas City, Mo., for the appellant.
William B. Sutton, and William B. Sutton, jr., both of Kansas City, for the appellee.
This is an appeal from an order granting a new trial after a verdict for the defendant in an action to recover damages caused by the death of Otto N. Ross, a switchman in the service of the railroad company. The new trial was granted solely for error in an instruction.
The action was based upon the alleged negligence of the company and its employees in pushing or "kicking" a string of cars, from which the engine had been detached, with no one in charge, over a sidetrack upon which Ross was standing, and thereby killing him; and in failing to give warning of the approach of this string of cars, after the company's employees knew that he was in imminent danger.
The defendant filed a general denial, and pleaded negligence on the part of Ross in failing to use his senses of sight and hearing.
It appeared from the evidence that Ross belonged to a crew which had just brought a drag of cars into the Kansas City yards. The engine was cut off and was waiting on a crossover track for an opportunity to get back to what is called "three main line," upon which another engine and crew were switching cars. When Ross's engine stopped at the crossover, he left the foot-board, and walked in a southerly direction to throw a switch to let his engine out on "three main line," and then walked west to "middle yard lead," and stood there conversing with Mr. Hill, a switchman from another engine that had also been stopped for the switching first referred to. While the two men talked together there three to five minutes, the crew engaged in switching sent a cut of cars from "three main line" out on the "middle yard lead" with no one on...
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