Smith v. The St. Louis & San Francisco Railroad Company

• Decision Date: 08 May 1915
• Docket Number: 19,467
• Citation: 95 Kan. 451,148 P. 759
• Court: Kansas Supreme Court
• Parties: WILLIAM M. SMITH, Appellee, v. THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.

148 P. 759

95 Kan. 451

WILLIAM M. SMITH, Appellee, v. THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.

No. 19,467

Supreme Court of Kansas

May 8, 1915

Decided. January, 1915.

Appeal from Bourbon district court; CHARLES E. HULETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FEDERAL EMPLOYER'S LIABILITY ACT--Personal Injuries--Demurrer to Evidence Properly Overruled. In an action under the federal employer's liability act (Part 1, 35 U.S. Stat. at Large, ch. 149, 4 U.S. Comp. Stat. 1913 §§ 8657-8665), brought by a brakeman injured by a defective car door falling on him, a demurrer to the plaintiff's evidence is properly overruled when:

(a) The evidence shows that the plaintiff did not know of the defect causing the injury until after the injury occurred, and for that reason had not assumed the risk of injury from that defect.

(b) The evidence shows that the defendant was guilty of negligence in sending out a defective car without inspection.

(c) The evidence shows that a release and settlement, admitted by plaintiff, was procured by making false representations as to future employment.

2. SAME--Opinion of Physician Based on History of Case Incompetent. It is error to permit physicians, testifying as experts, to testify concerning the condition of a person examined by them, and base their opinion partly on the history of the case; but where there is ample evidence, not based on the history of the case, to establish all the facts so erroneously testified to, such error is not sufficient to cause a reversal of a judgment.

3. SAME -- Conversation -- Competent Evidence. When it is sought to prove the details of a conversation, all that was said is competent, even if part of that conversation did disclose the contents of documents not introduced in evidence.

4. SAME--Proper Instructions to Jury. In such an action as is described in section 1 of this syllabus, it is not error to instruct the jury:

(a) That the risk assumed by the plaintiff was the ordinary risk of his employment, after the defendant had used reasonable and ordinary care to furnish a reasonably safe place in which to work and reasonably safe appliances with which to work.

(b) That the defendant was guilty of negligence if it sent out a car in bad order without inspection.

(c) That the jury should bring to their assistance their good judgment, common sense, observation and experience in life.

(d) That the plaintiff had a right to assume that the defendant had performed its duty in exercising reasonable and ordinary care to provide a reasonably safe place in which to work and reasonably safe tools with which to work.

(e) Concerning contributory negligence, without specifically defining that expression, and without stating a specific rule for the reduction of damages on account of contributory negligence, when no instruction is requested giving such definition or stating such rule.

5. SAME--Refusal of Requested Instructions--Not Error. It is not error to refuse to give instructions:

(a) Concerning the duty of making an unsafe place safe, where there is no such duty imposed on the plaintiff as to the defect which caused his injury.

(b) Concerning assumption of risk, where the court has fully covered the subject in the instructions given.

6. SAME--Contributory Negligence--Not Proven. The finding of the jury that the plaintiff was not guilty of contributory negligence was supported by sufficient evidence.

R. R. Vermillion, and W. F. Lilleston, both of Wichita, for the appellant; W. F. Evans, of St. Louis, of counsel.

J. I. Sheppard, James G. Sheppard, and Kate Sheppard, all of Fort Scott, for the appellee; A. M. Keene, of Fort Scott, of counsel.

OPINION

MARSHALL, J.:

This is an action for damages for personal injury. The plaintiff recovered judgment for $ 12,500. The defendant appeals.

The plaintiff, a brakeman, was injured by a car door falling on his head. The negligence alleged is that the defendant did not inspect the car at its yards in Kansas City, Mo., and sent the car out with defective hangings for the door. The defenses are, a general denial, contributory negligence on the part of the plaintiff, assumption of the risk by him, and a release and settlement given by him to the defendant. The plaintiff's reply is, that the release was procured by fraud.

The defendant was operating an interstate railroad between Kansas City, Mo., and Fort Scott, Kan. The plaintiff was employed on that road as a brakeman. He left Kansas City, Mo., November 12, 1912, at 9:15 p. m., with a freight train, bound for Fort Scott, Kan. It was his duty, when the train stopped, to examine the cars for any defect that might appear, and so far as he could, repair such defect. This train stopped at Olathe, Paola, and Pleasanton, reaching Pleasanton at 2:47 a. m., November 13, 1912. At Pleasanton the plaintiff discovered a car door hanging by one hanger or roller. He attempted to replace the door, when it fell on him, struck him on the top of his head, and fractured the inner plate of his skull. The iron bar or rod upon which the car door moved was bent, and the holes through which the bolts containing the hangers passed were enlarged so that they would not hold the bolts. The plaintiff had examined the cars at Olathe and Paola, and this car door appeared all right at both places. The plaintiff returned to his home in Kansas City, remained there a month or so, and finally went to the Frisco hospital in St. Louis. He remained there twenty-nine days, and was then released. At the time he was released he had conversations with physicians in charge of the hospital, who told him that there was nothing the matter with him, and that he was able to go back to work. The plaintiff signed a release and settlement of his claim against the company for $ 100. When this was signed, the general claim agent of the defendant said, "Smith, we have made up our minds to give you $ 100.00 and your position back at Kansas City." Smith said, "Are you sure now that I will get my job back?" The agent replied, "Yes, that is always considered in the settlement." A letter was given the plaintiff to the company's superintendent of the terminal at Kansas City, advising the officer that the claim had been settled. The agent told the plaintiff to take the letter, give it to the terminal agent at Kansas City, and he could get his position back. The plaintiff applied for employment, and was refused, and among the reasons given for such refusal were, that the plaintiff had been paid $ 100 when he lost only ten days, and that the report of the physicians who examined him was that he was incompetent, and for that reason they were compelled to keep him out of the service.

The jury made the following special findings:

"1. Was plaintiff induced to sign a written release to the defendant for damages, for plaintiff's alleged injuries at Pleasanton, Kansas, on the occasion complained of, by reason of any fraud on the part of the defendant? Ans. Yes.

"2. If you answer the preceding question in the affirmative please state fully in what the fraud consisted and by whom the fraud was committed. Answer: By representing to plaintiff that he was all right and able to go to work--by Doctors Kale and Farris. And also by the claim agent, Mr. Rogers--representing that his position would be waiting for him when he got back to Kansas City.

"3. If you find for plaintiff, please state fully in what respects, if any, defendant was negligent on the occasion complained of, and through what employees, if any, defendant was thus negligent. Answer: By allowing this car to go out on the road with a door in a dilapidated condition. No evidence to show what employee negligent.

"4. Please state fully at what place or places, if any, on the trip or run in question, the plaintiff inspected car No. 46,597, mentioned in evidence, before he inspected it at Pleasanton, on the occasion complained of. Answer: Paola and Olathe.

"5. Was the car door in question off the track and hanging by only one hanger when the car left Kansas City, Missouri, in the freight train mentioned in evidence? Answer: No.

"6. Do you find that ordinarily a freight car door off the track and hanging by only one hanger was apt to fall over, as the one in question did, if a brakeman attempted to lift it back in the manner plaintiff did, on the occasion complained of? Answer: No.

"7. Do you find from the evidence that on said occasion plaintiff was guilty of contributory negligence? Answer: No.

"9. Do you find that the car door mentioned in evidence fell on plaintiff's head on the occasion complained of, as a result of his lifting off the track the remaining hanger by which said car door was hanging? Answer: No."

We will follow the defendant's complaints in the order set out in its brief.

(1) The defendant contends that the demurrer to the plaintiff's evidence should have been sustained; (a) because that evidence showed that the plaintiff assumed the risk of the injury alleged; (b) because it did not establish any alleged ground of negligence; (c) because it did not establish fraud in the settlement made by the plaintiff with the defendant.

(a) Did the plaintiff assume the risk of the injury alleged? He was a brakeman. He assumed the risk of injury resulting from that employment, but not the risk resulting from defects caused by defendant's negligence of which defects he had no knowledge. We may say that he assumed the risk involved in doing anything connected with his work, when working with a defective instrument, knowing what the defect was. At Pleasanton, the plaintiff found the car door hanging by one hanger. He attempted to replace the door. He assumed the risk incident to replacing the door. He did not...