Schaefer v. Lowden

• Decision Date: 09 April 1938
• Docket Number: 33659.
• Citation: 78 P.2d 48,147 Kan. 520
• Parties: SCHAEFER v. LOWDEN et al. [*]
• Court: Kansas Supreme Court

78 P.2d 48

147 Kan. 520

SCHAEFER v. LOWDEN et al. ^[*]

No. 33659.

Supreme Court of Kansas

April 9, 1938

Syllabus by the Court.

By the Federal Employers' Liability Act, Congress took possession of field of employers' liability to employees in interstate transportation by rail and all state laws upon that subject were superseded. Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Under the Federal Employers' Liability Act, negligence is the foundation of employer's liability to employee and without negligence, there can be no recovery. Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Under the Federal Employers' Liability Act, mere happening of an accident will not warrant a recovery and there must be negligence on the part of the employer or on the part of some employee. Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Under the Federal Employers' Liability Act, the employee assumes the ordinary risks and dangers of his employment and the extraordinary risks and dangers which are obvious and which he fully knows and appreciates, and he also assumes the risks due to the negligence of his employer and fellow employees which are obvious and which he fully knows and appreciates. Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

A railroad car inspector, who had worked in same yard in which injuries were sustained at night for many years and through all kinds of weather in the performance of his duties assumed the risks arising from darkness, wind, dust, and rain, and the risks arising from the negligence of his employer and fellow employees which were obvious and which were fully known and appreciated. Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

In railroad car inspector's action for personal injuries sustained in switching operation, refusing requested instruction regarding inspector's assumption of risk arising from negligence of employer and fellow employees which were obvious and which were fully known and appreciated, and regarding extraordinary risks and dangers which were obvious, constituted reversible error. Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Where railroad car inspector based his case on the proposition that car which struck him was carelessly and negligently cut loose without a warning, and jury found that it was not the custom to warn inspectors when switching cars, but that railroad was negligent in not properly watching car because extra precautions should have been taken due to weather conditions the negligence found by jury was outside issues in pleadings requiring general verdict and findings to be set aside. Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.; Gen.St. 1935, 60-2918.

In railroad car inspector's action for injuries sustained in switching operation, where special findings acquitted the employers of negligence pleaded, the general verdict for inspector was nullified and required setting aside of general verdict. Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.; Gen.St.1935, 60-2918.

1. By the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., Congress took possession of the field of employers' liability to employees in interstate transportation by rail, and all state laws on the subject were superseded.

2. The decisions of the Supreme Court of the United States are controlling as to the interpretation and effect of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

3. Under the Federal Employers' Liability Act negligence is the foundation of liability, and without negligence there can be no liability. Under the act the mere happening of an accident will not warrant a recovery; there must be negligence on the part of the railroad company or on the part of some employee, and this is the basis of liability, 45 U.S.C.A. § 51 et seq.

4. Under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the employee assumes the ordinary risks and dangers of his employment, and the extraordinary risks and dangers which are obvious and which he knows and appreciates; he also assumes the risks due to the negligence of his employer and fellow employees, which are obvious and which he fully knows and appreciates, and held, the refusal of the court to so instruct the jury, when warranted by the evidence, is reversible error.

5. Where the general verdict is inconsistent with the special findings of fact, the latter control, and held, the general verdict and findings of the jury outside the issues should be set aside.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by Frank A. Schaefer against Frank O. Lowden and others, trustees of the estate of the Chicago, Rock Island & Pacific Railway Company, to recover damages for personal injuries sustained by the plaintiff while in the service of the defendants. Judgment for plaintiff, and defendants appeal.

Judgment reversed, with directions.

Luther Burns and J. E. DuMars, both of Topeka, and Earle W. Evans, Joseph G. Carey, W. F. Lilleston, and George Stallwitz, all of Wichita, for appellants.

Harry C. Castor, Thomas E. Elcock, Victor J. Rogers, and J. Paul Jorgensen, all of Wichita, for appellee.

ALLEN Justice.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A.§§ 51-59, to recover damages for personal injuries sustained by the plaintiff while in the service of defendants. Plaintiff recovered judgment, and defendants appeal.

Plaintiff alleged that on April 20, 1936, he was in the employ of defendants as car inspector, and at about 9:30 o'clock p. m. on that date was assisting in the making up and breaking up of cars at the Cline yard, working on a night shift; that a crew with a foreman at the Cline yard was engaged in cutting out freight cars, and that it was the duty of the plaintiff, together with the crew, to inspect such cars and to cut such cars from trains and transport the cars along the tracks at Cline yard. At the above-stated time plaintiff was employed on track No. 1; that it was dark and rainy; that after putting his packing iron in the material box, about 16 feet from track No. 1, he started to go across track No. 1 to track No. 4; that at the time a car on track No. 1 was moving in a southerly direction toward plaintiff under its own momentum, which car had "carelessly and negligently been cut loose without any warning." It was alleged that as plaintiff proceeded across track No. 1 he was struck by the approaching car and sustained serious injuries. The negligence charged in the petition is as follows:

"10. Plaintiff further alleges that said defendants were guilty of negligence which was a direct and proximate cause of plaintiff's injuries and that but for such negligence the plaintiff would not have been injured in this:

"(a) That said defendants were guilty of negligence in not providing this plaintiff a safe place to work and by reason of cutting off said car in the direct path of the cars upon which the defendants, their servants, agents and employees knew plaintiff had been working.

"(b) That said defendants were guilty of further negligence in not having said moving car lighted so as to show its position on said track and in not informing this plaintiff that said car was cut off in his direction, the defendants, their agents, servants and employees well knowing it to be dark and rainy and well knowing said car to fuse with the darkness of night-time and well knowing that said car could not be seen by this plaintiff."

Defendants answered, denying all the material allegations of plaintiff's petition; alleged that the plaintiff "voluntarily assumed the risk and danger of all injuries and damages by him alleged and suffered"; alleged that if the plaintiff was injured, such injuries were not caused by any fault, negligence, or wrongful act of defendants, but were caused by the inattention, lack of care, and negligence of the plaintiff.

Defendants' demurrer to plaintiff's evidence was overruled. The jury answered special questions and returned a verdict for plaintiff in the sum of $16,000.

The various specifications of error are thus summarized in appellants' brief:

"1. The Court erred in overruling defendant's demurrer to plaintiff's evidence presented at the conclusion of the plaintiff's evidence.

"2. The Court erred in instructing the jury on the law of assumption of risk under the Federal Employers' Liability Act, and

"In erroneously instructing the jury generally on the law of contributory negligence, and on the custom and manner of handling cars in the Cline Yard, wherein no liability would be created from the happening of the accident involved.

"3. The Court erred in overruling defendants' motion to set aside special findings of the jury Numbers 5 and 6, and in overruling defendants' motion for judgment on the special findings of the jury, and in overruling defendants' motion for a new trial."

At the outset it may be well to observe that in actions arising under the Federal Employers' Liability Act certain propositions are well settled and are binding on this court.

First. By the Federal Employers' Liability Act, Congress took possession of the field of employers' liability to employees in interstate transportation by rail; and all state laws upon that subject were superseded. Chicago, M. & St. P. R. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U.S. 1, 55, 32 S.Ct. 169, 56 L.Ed. 327, 348, 38 L.R.A.,N.S., 44, 1 N.C.C.A. 875; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 501, 34 S.Ct. 635, 58 L.Ed. 1062, 1068, L.R.A.1915C, 1, Ann.Cas.1915B, 475, 8 N.C.C.A. 834.

In Cole v. Railway Co., 92 Kan. 132, 139 P. 1177, 1178...