Salisbury v. The Atchison

• Citation: 125 Kan. 131,263 P. 791
• Decision Date: 11 February 1928
• Docket Number: 27,711
• Court: Kansas Supreme Court
• Parties: P. N. SALISBURY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

263 P. 791

125 Kan. 131

P. N. SALISBURY, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 27,711

Supreme Court of Kansas

February 11, 1928

Decided January, 1928

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Federal Employers' Liability Act--Evidence. The evidence considered in an action for damages for personal injury prosecuted under the federal employers' liability act, and held that, under federal law, a demurrer to plaintiff's evidence should have been sustained.

William R. Smith, Owen J. Wood, Alfred A. Scott and Alfred G. Armstrong, all of Topeka, for the appellant.

J. H. Brady and T. F. Railsback, both of Kansas City, and J. Francis O'Sullivan, of Kansas City, Mo., for the appellee.

OPINION

BURCH, J.:

The action was one for damages for personal injury. Plaintiff recovered, and defendant appeals.

Plaintiff was employed as a light repair man in defendant's terminal yards in Kansas City, and worked from midnight until 8 o'clock in the morning. While at work on the morning of September 11, 1925, plaintiff was directed by his foreman to procure a simplex knuckle to replace a broken knuckle on a car. Plaintiff started for a tool rack in which repair supplies were kept. To reach the tool rack it was necessary for him to cross track 86, running east and west, and the northernmost track in that vicinity. Track 86 was occupied at the time by an interstate green-fruit extra train consisting of ninety-three refrigerator cars and a caboose. Plaintiff was obliged to go through that train to get to the tool rack. The petition alleged, and plaintiff testified, that when he arrived at the tool rack he found no simplex knuckle, and it was necessary for him to look further. The petition alleged, and plaintiff testified, that he left the tool rack, started eastward, and walked on a cinder path on the north side of track 86, toward another depository of repair supplies. The cinder path was about eighteen or twenty inches from the track. He testified that while he was at the tool rack the green-fruit extra commenced to move eastward. As he walked beside it it increased its speed, and he was about ten or twelve or eighteen inches from the train. The petition gave the following account of the accident:

"While he was walking along beside said train some object protruding from one of the cars of said train, a better description of which the plaintiff cannot give, struck the plaintiff in the back between the shoulders and the waist, and knocked him down and felled him to the ground, and in falling he was thrown under the wheels of said train of cars and his right leg was thrown across the rails of the track, and said train ran over the plaintiff's right leg. . . ."

The petition also contained the following paragraph:

"The defendant and the defendant's agents, servants and employees were negligent in the matters and things set out herein, in failing to give the plaintiff a reasonably safe place in which to do his work; in starting said train out with a car or cars therein with protruding pieces extending outward therefrom; in operating said train through said yards with protruding pieces extending out from a car thereof; in operating said train through said yards with a car which was wider or which occupied a greater width of track than the ordinary car; in operating said train through said yards with a car which required more than the ordinary space in which to be moved; in operating said train through said yards without warning the plaintiff, who was lawfully walking through the yards, of any unusual or extraordinary conditions attending the movement of said train; and in moving said train through said yards over said track with a car which either was equipped with defective, loose or projecting doors, or loaded with merchandise which protruded beyond the sides thereof, or which contained either projecting members or projecting objects; in operating said freight train through said yards at said time in the dark with a projection of any kind protruding out from the side thereof in such a way that it would strike the plaintiff, who was walking through said yards, and knock him down and cast him under the wheels. The plaintiff had no knowledge of the makeup of said train or of the fact that there was any projection of any kind extending outward therefrom, but the defendant and its agents, servants and other employees in charge of said train and of its inspection knew, or by the exercise of ordinary care and prudence could and should have known thereof."

Plaintiff testified that when he came to the train on his way to the tool rack the train was standing still, there were blue lights on the engine indicating the train would not be moved, and he climbed over the coupling between two cars. When he left the tool rack, the train had been in motion several minutes, and as he walked along something happened:

"Something from the train struck me in the back and caused me to fall forward towards the east. This thing struck me between the waistline and my shoulders on the right side, the side nearest to the train. It hurt my back. I fell face forward. A car wheel ran over my right foot. . . . I should judge I had walked about 35 or 40 feet east of the tool rack when I got struck and knocked down and knocked under the train. . . . This was some time after five o'clock. . . . I was struck in the back by the train. I don't know what part of the train struck me. . . . Something that stood out past the cars hit me. I do not know what it was. The train kept going on after it hit me. . . . I don't know what it was that hit me. . . . I did not see the thing that struck me. If I had I would have got out of the way. I did not see it after it struck me. . . . The train was the only thing around that I saw that was in motion."

In giving reasons for believing something on the train or the heavy train struck him, plaintiff said it was because of the sudden jar. The foregoing is all the evidence of facts relating to cause of injury which was introduced. Defendant demurred to plaintiff's evidence, and the demurrer was overruled.

When plaintiff testified something from the train struck him, he was struck by the train, and something that stood out past the cars hit him, he was not testifying to facts. He was stating the result of his own mental processes, and what he thought, when it was stated, conveyed no information whatever relating to the cause of his injury. The only facts relating to cause of injury testified to by plaintiff were that he was struck in the back while he was walking beside the moving train, which was the only thing he saw, felt a sudden jar, was knocked down, and a car wheel ran over his foot.

The action was prosecuted under the federal employers' liability act. The question of liability of the defendant must be determined by federal law, and this is true to the extent that, on review of a judgment of a state court, the federal supreme court will examine the record for itself to ascertain the sufficiency of the evidence to support a finding of actionable negligence. (C. M. & St. P. Ry. v. Coogan, 271 U.S. 472.)

The following principles applicable to cases arising under the federal employers' liability act have been enunciated by the supreme court of the United States: In case of accident to an employee, he must prove not only the cause which operated to produce the injury, but also some negligent act or omission of the employer in which the cause of injury originated. The fact of accident does not warrant an inference of negligence. Negligence is an affirmative fact which must be established by evidence. When the evidence leaves cause of injury in doubt, and any one of several things may have been the cause, the jury may not choose one of them by guess, and find negligence without a satisfactory basis for the conclusion. With the presumption that the injured employee used due care goes the correlative presumption that the employer used due care. This presumption must be overcome by evidence. When circumstantial evidence is relied on to prove a fact, the circumstances must be proved. The circumstances must not themselves be presumed, and one presumption cannot be built upon another. (Patton v. Texas and Pacific Railway Co., 179 U.S. 658, 45 L.Ed. 361, 21 S.Ct. 275; Looney v. Metropolitan Railroad Co., 200 U.S. 480, 50 L.Ed. 564, 26 S.Ct. 303; Chi., Rock Isld. & Pac. Ry. v. Bond, 240 U.S. 449, 60 L.Ed. 735, 36 S.Ct. 403; New Orleans & N. E. R. R. Co. v. Harris, 247 U.S. 367, 371, 62 L.Ed. 1167, 38 S.Ct. 535; C. M. & St. P. Ry. v. Coogan, 271 U.S. 472.)

The principles enunciated in the cited cases have been applied in numerous decisions by United States circuit courts of appeal and United States district courts. The case of Missouri, K. & T. Ry. Co. v. Foreman, 174 F. 377, decided by the circuit court of appeals, eighth circuit, is instructive. One of the headnotes states the facts:

"A freight train on defendant's railroad broke in two by the pulling out of a drawhead of the car next the engine, which was stopped about ten feet from the car while the engineer plaintiff's intestate, who was conductor, and a brakeman, were making a temporary attachment. While so at work, the engine moved back, and deceased was caught between it and the car and killed. Plaintiffs alleged two acts of negligence on the part of defendant: A defective air brake, which permitted the engine to move; and a leaky throttle. But it appeared that the engine moved upgrade, and it was not shown that the lever was so set that it would move backward if started by the steam. The fireman was on the engine. Hel...