Rouse v. Ledbetter

• Decision Date: 11 January 1896
• Docket Number: 8013
• Citation: 56 Kan. 348,43 P. 249
• Court: Kansas Supreme Court
• Parties: HENRY C. ROUSE, as Receiver de bonis non of the Missouri, Kansas & Texas Railway Company, v. W. G. LEDBETTER

43 P. 249

56 Kan. 348

HENRY C. ROUSE, as Receiver de bonis non of the Missouri, Kansas & Texas Railway Company, v. W. G. LEDBETTER

No. 8013

Supreme Court of Kansas

January 11, 1896

Decided January, 1896.

Error from Labette District Court.

AT May term, 1891, the defendant in error recovered a judgment against the receivers of The Missouri, Kansas & Texas Railway Company for $ 4,500 on account of personal injuries sustained in the yards at Parsons on January 8, 1891 resulting in the loss of his left hand, which was amputated above the wrist joint. He was on that day engaged as a helper, following a switch-engine at work at and near Johnson avenue. While attempting to make a coupling between a standing box car on the north side of said avenue and a moving one which he had been riding, and from which he alighted at or near the sidewalk, he slipped on an incline forming the connection between the east rail and the end of the sidewalk, and in struggling to avoid being run over by the moving car, he threw up his left hand which was caught between the draw-heads of the standing and the moving car. The surface of the ground, the sidewalk and the incline were covered by a recent fall of snow, which was melting, and this made the incline slippery. The only negligence charged against the receivers is that this incline, as constructed and maintained by them, was dangerous to the yardmen in making couplings or doing other work upon the ground at that point, and that the plaintiff below was unaware of its existence at and before the time of sustaining said injury. Johnson avenue at that point crossed a tract known as the "Railroad Reserve," owned by the company, and several tracks crossed the avenue. In 1887, while the Missouri, Kansas & Texas railway was being operated under a lease by the Missouri Pacific Railway Company, the latter company was by ordinance required to construct a wood side walk of the third class along the north side of Johnson avenue across the railroad reserve, the ordinance containing no direction as to the grade of the sidewalk, nor how it should be constructed, except as above stated. The sidewalk was put down, and it remained there until the summer of 1890 when the receivers put in a side-track principally for the accommodation of a new elevator owned by Steele & Busby. In order to do this, the receivers took up part of the sidewalk and laid the new track upon a somewhat lower level. This sidetrack did not cross the sidewalk at right angles but the old sidewalk was so cut off at a distance from the east rail about 30 inches on the north side, and 18 inches on the south side of the sidewalk. The top of the rail was about six inches lower than the top of the sidewalk, and boards were placed across the end of the sidewalk and alongside of the rail, the top of the plank being an inch or two lower than the top of the rail. This connection between the end of the walk and the east rail is the incline upon which Ledbetter slipped and fell. It does not appear that the receivers made any application to the mayor and council for leave to take up this sidewalk, and there is some conflict in the testimony as to whether or not the work was done under the direction and to the approval of the street commissioner but the jury found that it was not, and the evidence shows that the work was done and the incline put in by the servants of the receivers, and it does not show that any grade had ever been established by the city. Some other facts appear in the opinion, filed January 11, 1896.

Judgment affirmed.

T. N. Sedgwick, for plaintiff in error.

W. D. Atkinson, for defendant in error.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

I. It is alleged in the petition, among other things, in...