Soldanels v. Missouri Pac. Ry. Co.
| Decision Date | 06 December 1886 |
| Parties | JOHN SOLDANELS, Respondent, v. THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Cass Circuit Court, HON. NOAH M. GIVAN, Judge.
Affirmed.
Statement of case by the court.
This is an action by the parent, John Soldanels, to recover damages for the loss of the services of his minor child, consequent upon injuries sustained while in the employ of the defendant a railroad corporation, in switching trains in its yard at Pleasant Hill.
The substantive allegations of the petition are, that Joseph M a minor son of plaintiff, aged about sixteen years, was employed by the defendant in the dangerous and hazardous work of coupling and uncoupling cars in its said yards in the night time. It is alleged that this employment of said minor was made by defendant against the express wishes of plaintiff, made known to defendant prior thereto; that the boy was not qualified for the performance of such hazardous duty so as to properly protect himself; that on the eighteenth day of October, 1883, while attempting to make a coupling of two freight cars in said yard his right hand was caught between the draw heads, and so injured as to necessitate the amputation of the thumb and some fingers permanently disabling him in the use of said hand.
The answer, after tendering the general issue, alleged that plaintiff's said son had been in defendant's employ as brakeman on its road for a long period of the time anterior to this accident, and was familiar with such work and that any injury he may have sustained, at the time in question, was attributable to his own want of care, or that of his fellow servants.
The plaintiff's evidence tended to show that his son was employed, on or about the first day of October, 1883, in the work of coupling and uncoupling cars in the defendant's yard at Pleasant Hill; that this employment was made by one Martin in charge of said yards for defendant, with power to so employ and discharge such hands. The evidence also tended to show that some time prior to this employment the plaintiff had told the said Martin he did not wish his son to work on the said railroad, and that he wished him to attend school; that it was from one to three months prior to the injury he told Martin not " to hire him."
The injury occurred on the eighteenth day of October, 1883. The testimony tended to show that about ten o'clock of that night the boy went between two freight cars and attempted to make a coupling. Owing to the hole in the first draw head being worn too large the pin was obstructed so that it did not go through, and on the second attempt, the car colliding with another car standing out of its customary place on the track, the pin failed to get through, and the boy's hand was caught and lacerated. The boy did not discover this defect of the hole in the draw head until he made the effort to insert the pin the first time.
The defendant's evidence tended to show that this boy, in 1882, had run on one of defendant's trains as " a peanut boy," and in 1883 had been in defendant's employ as brakeman on one of its branch roads, but had been discharged by the agent of defendant, having charge of such matters, on the ground that he was a minor. This was prior to the time of plaintiff's notice to Martin. The boy boarded during all this time with his father, who kept a hotel in Pleasant Hill, and received his own wages. The evidence does not show, however, that he received any pay between the first day of October, 1883, when employed by Martin, and the day of the accident in question.
The plaintiff testified that he did not know his son was working on the railroad, that he supposed he was attending school at the time of the injury, while defendant's testimony disclosed circumstances which might reasonably have warranted the jury in finding that the plaintiff, at least prior to the last employment of his son, knew he was working on defendant's road.
The jury returned a verdict in favor of plaintiff, assessing his damages at $450. Defendant prosecutes this appeal.
THOMAS J. PORTIS and ADAMS & BOWLES, for the appellant.
I. The plaintiff's testimony shows that he had practically emancipated his son. And it is not true that plaintiff told defendant's agent that his son was ignorant of the dangers of the service. The son was an experienced railroad man and familiar with such duties.
II. The right to recover is bottomed on the alleged wrongful act of defendant in hiring the plaintiff's minor son and imposing hazardous duties upon him. The case, as made by the pleadings and proof, is based upon the theory that the simple fact of hiring the son and putting him to work at a place and business in which his father did not wish him to labor, was, of itself, such negligence of defendant as would entitle plaintiff to a verdict. But the son was guilty of gross negligence, after he had discovered the defect in the draw head, and the court should have so declared, as matter of law (there being no conflict in the evidence), and sustained defendant's demurrer to the evidence.
III. The court erred in giving instructions for the plaintiff, and in refusing instructions asked for defendant. Defendant's demurrer to the evidence and motion in arrest should have been sustained. Railroad v. Miller, 51 Tex. 374; Curran v. Merch. Co., 130 Mass. 374; Railroad v. Harney, 28 Ind. 28; Gaitland v. Railroad, 67 Ill. 498.
A. COMINGO, with WHITSETT & JARROTT, for the respondent.
I. The instructions as a whole, and interpreted by the light of the record, are a correct exposition of the law of the case, and defendant's motion for a new trial and in arrest were properly overruled. And plaintiff's and defendant's instructions, relating to the measure of damages, are consistent with each other, and are correct. McGonigle v. Dougherty, 71 Mo. 265; Davis v. Brown, 67 Mo. 313; Smith v. Calligan, 74 Mo. 389; Noble v. Blount, 77 Mo. 241. Defendant's instructions, which were refused, are not warranted by anything appearing from the record, and were properly refused. Bank v. Murdock, 62 Mo. 73; Fulkerson v. Thornton, 68 Mo. 469.
II. Defendant cannot shield itself from liability on the ground of contributory negligence of the son. Furthermore, the jury...
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