Rush v. Missouri Pac. Ry. Co.

• Decision Date: 07 January 1887
• Citation: 12 P. 582,36 Kan. 129
• Parties: MARY A. RUSH, as Administratrix of the estate of Michael O'Connor, deceased, v. THE MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

12 P. 582

36 Kan. 129

MARY A. RUSH, as Administratrix of the estate of Michael O'Connor, deceased, v. THE MISSOURI PACIFIC RAILWAY COMPANY

Supreme Court of Kansas

January 7, 1887

Error from Bourbon District Court.

ACTION brought under § 422 of the civil code, by Mary A. Rush as administratrix of the estate of Michael O'Connor deceased, against The Railway Company, to recover $ 10,000 damages for wrongfully and negligently causing the death of said decedent. Trial at the December Term, 1884, and judgment for the defendant. The plaintiff brings the case here. The material facts are stated in the opinion.

Judgment affirmed.

J. D McCleverty, and McClure & Austin, for plaintiff in error.

W. C. Perry, and David Kelso, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Bourbon county, under § 422 of the civil code, by Mary A. Rush, administratrix of the estate of Michael O'Connor, deceased, to recover damages against the Missouri Pacific Railway Company for wrongfully and negligently causing the death of the deceased. The damages sought to be recovered are claimed for the benefit of Michael O'Connor Sr., the father and next of kin to the deceased. The deceased had been in the employment of the defendant railway company, as yard switchman, at Fort Scott, Kansas, for some two or three months prior to the accident which caused his death. On March 18, 1884, in pursuance of an order given to him by E. W. Head, the yard master, he went with the switch engine, No. 45, to place a car upon the track of the St. Louis, Fort Scott & Wichita railroad. After throwing open the connecting switch of the two roads, he walked along the side of the engine and cars for the purpose of uncoupling a defective car from the engine and placing it at a point designated by the yardmaster. While performing this duty he stepped upon the track, and between the cars, and while attempting to remove the coupling-pin his foot was caught and fastened between the main rail and the guard rail, so that he was unable to extricate it, and the cars, being at the time in motion, passed over his body and instantly killed him. There was no blocking or other protection between the main rail and the guard rail for the purpose of preventing such an accident. At the time of his death, O'Connor was 25 years old, healthy, temperate, strong, and a competent and careful railroad man, and was receiving wages at the rate of $ 50 per month from the railway company. He was unmarried, and his father, who survived him, was the next of kin to him. This suit was brought by his administratrix for his father's benefit. His father is about 67 years old, has no property, is unable to support himself, and was mainly dependent upon his son for his maintenance. From the time the deceased was 15 years old up to the time of his death, one-half of his earnings were given for the support of his father. The case was tried by the court and a jury. After the plaintiff had submitted all her evidence to the jury, the defendant interposed a demurrer thereto, on the ground that the same did not prove a cause of action; which demurrer was overruled by the court. Thereafter the defendant introduced its evidence to the jury, and among other things introduced evidence tending to show that the failure to block between the main rail and the guard rail was not an act of negligence, and that such failure did not increase the danger of the employes; and also introduced evidence tending to show that many railroads, including that of the defendant, did not use any such protection. After the introduction of all the evidence on the part of the plaintiff and the defendant, the court instructed the jury to find a verdict for the defendant, which was accordingly done, and to which instruction the plaintiff duly excepted, and thereafter filed a motion for a new trial, which was overruled by the court; to which ruling she also duly excepted.

The court rendered judgment in favor of the defendant and against the plaintiff for costs; and to reverse this judgment and the foregoing rulings of the trial court the plaintiff brings the case to this court.

The questions presented in this case are as follows:

1. Under the circumstances of this case, was the failure of the railway company to use blocking, or some other protection, between the main rail and the guard rail where the plaintiff's intestate was injured, culpable negligence as toward the plaintiff's intestate?

2. If so, did the plaintiff's intestate, by any acts of his, waive such negligence?

3. If the defendant was guilty of culpable negligence, and if the plaintiff's intestate did not waive it, then was he guilty of contributory negligence in attempting, at the time and place and in the manner he did, to uncouple the cars, considering the condition of the railway tracks?

4. Were these questions questions of fact for the jury, or questions of law for the court to determine?

In order to consider these questions intelligently, it will perhaps be necessary to restate some of the facts in greater detail, and to state some additional facts. The railway was not out of repair: it was in just the same condition as it was when it was originally constructed, and it was constructed in the yard where the plaintiff's intestate worked precisely as it was constructed in all the other yards belonging to the defendant, and in precisely the same manner as many other railways belonging to other companies are constructed. In the vicinity of the place where the accident occurred there were in all about eight or ten guard rails and several switches, and in the entire yard where the plaintiff's intestate worked there were about twenty guard rails and a great many switches, and all were constructed alike so far as blocking or other protection was concerned, and he had worked in this yard for about two and one-half months prior to the accident. He was twenty-five years old, and a strong, healthy, temperate, competent and careful railroad man. During his employment in this yard he had worked daily therein, and in all parts thereof, and during each day he had assisted in switching many railway cars. The accident occurred on March 18, 1884, in broad daylight and at about 1 o'clock in the afternoon, and the condition of the railway track where the accident occurred was in plain view. The plaintiff's intestate evidently had full and complete knowledge of the exact condition of all the railway tracks in that yard--of the main track and the switch tracks, of the main rails and the guard rails, and of the want of blocking or other protection where guard rails were used, and he seemed to be satisfied; at least, he made no complaint of the condition of the railway tracks or of their want of blocking or other protection, and never gave to the railway company any notice of their supposed unsafe condition, and there was no promise at any time made for or on the part of the railway company that the tracks should be made safer. Upon these facts this case must be decided.

As to whether the...