Sanborn v. Atchison

• Decision Date: 07 May 1886
• Citation: 35 Kan. 292,10 P. 860
• Court: Kansas Supreme Court
• Parties: RAY SANBORN, an infant, by his next friend, Charlotte Sanborn, v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

10 P. 860

35 Kan. 292

RAY SANBORN, an infant, by his next friend, Charlotte Sanborn, v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

Supreme Court of Kansas

May 7, 1886

Error from Shawnee District Court.

ON February 17, 1883, Ray Sanborn, an infant, who sues by his next friend, Charlotte Sanborn, commenced his action against The Atchison, Topeka & Santa Fe Railroad Company to recover damages, and in his petition alleged:

"That on the 19th day of February, 1881, and prior thereto, the defendant had been, was, and is the owner of and operating a railroad in Shawnee county, Kansas, and certain machinery connected with its said road, situate at the city of Topeka in said county, among, or a part of which it owned and operated a certain 'iron punch,' run and operated by steam, by said defendant as aforesaid; the plaintiff was at the time of the grievances hereinafter stated in the employment of the defendant, and hired to serve said defendant in and about said machinery and was of tender years, to wit, seventeen years of age, and ignorant and unskilled in operating and working such machinery; and was on said date in the employment of said defendant, under the charge and direction of H. S. Benton, the foreman in operating said machinery as agent, and in the employment of said defendant, and as such authorized and empowered by said defendant to operate said machinery, and to govern and control the men and other employes, including plaintiff, in the employment of said defendant, then and there being; that said defendant, by its foreman and employe, well knowing that plaintiff was unskilled and ignorant in operating said machinery, negligently ordered and directed plaintiff to oil and lubricate parts of certain cogs belonging to said machinery employed in operating said iron punch, as aforesaid, which said cogs were by the negligence and mismanagement of said defendant and its employes left in an exposed, unprotected and dangerous condition; and the said plaintiff, in obedience to said order of said Benton on said date, using ordinary skill and judgement, and without any fault and neglect, whilst in the fact of supplying the cup of said cogs had his right hand and arm caught by and between said cogs and then and there crushed, mutilated and wounded in such a manner as to, and he did, suffer amputation of said arm below the elbow, and which said accident was caused by the negligence and mismanagement of defendant and its employes by not then and there having said cogs boxed up and covered and protected as the same should and could have been and by not having the said machinery otherwise properly constructed and adjusted as defendant was required to do; and in consequence of the said negligence and mismanagement of said defendant and its agents and employes, plaintiff has become and is rendered a permanent cripple; and in consequence of said injury plaintiff became sick, sore and disordered, and so remained for a long space of time, to wit three months, during all of which time plaintiff suffered and endured great pain, and thereby plaintiff was forced to and did then and there lay out large sums of money, amounting in the whole to two hundred dollars, in and about being ministered to and treated in said sickness, lameness and disorder, and also thereby plaintiff incurred other and further divers expenses, damages and injuries, all and total amounting to the great sum of ten thousand dollars, for which plaintiff asks judgment, costs, and other relief as by law in such cases provided."

On March 13, 1883, the company filed the following answer omitting court and title:

"Now comes the defendant, and for answer to the petition of plaintiff in the above-entitled cause--

"1. Denies each and every material allegation therein contained.

"2. For a second and further defense, the defendant says that the injuries, if any, received by said plaintiff were occasioned wholly by his negligence (gross), and without fault of the said defendant, its agents or servants.

"3. For a third and further defense, defendant says that the injuries, if any, received by said plaintiff were occasioned wholly by the negligence of said plaintiff, or his coemployes and fellow-servants, and without fault of the said defendant.

"Wherefore, said defendant prays judgment for costs."

On April 4, 1883, the plaintiff moved the court to strike out the second and third paragraphs of the answer of defendant, which motion, upon the hearing thereof, was overruled. Subsequently, the plaintiff filed a reply to the second and third paragraphs of the answer. Trial at the January Term, 1884. Upon the conclusion of plaintiff's evidence, the defendant interposed a demurrer thereto, which was sustained by the court and the jury discharged. Plaintiff thereupon filed a motion for a new trial, which, upon hearing, was overruled. Plaintiff excepted to the rulings of the court upon the demurrer to the evidence and the motion for a new trial, and brings the case here.

Judgment affirmed.

H. P. Vrooman, and Jetmore & Son, for plaintiff in error.

A. A. Hurd, C. N. Sterry, and W. C. Campbell, for defendant in error; Geo. W. McCrary general counsel.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Action by Ray Sanborn, by his next friend, for a personal injury. The petition alleged that Ray Sanborn was ordered by H. S. Benton, the foreman of the boiler shop of the railroad company, at Topeka, to oil and lubricate parts of certain cogs belonging to or running an iron punch in the shop of the company; that whilst in the act of supplying the cup of the cogs with oil, his right hand and arm were caught by and between the cogs and so mutilated that amputation of the arm below the elbow was necessary; that the accident was caused by the negligence and mismanagement of the company in not having the cogs boxed up and protected as the same should and could have been, and in not having the machine otherwise properly constructed and adjusted as the company was required to do. There is no evidence in the record tending to show that the company was guilty of any negligence in failing to cover or further protect the cogs of the wheels where Sanborn was injured, and no evidence whatever tending to show that the iron punch and all the machinery connected therewith was not properly constructed and adjusted.

John M Stebbins, a witness called by the plaintiff, among other things testified that--

"He was a boiler-maker by trade, and...