Southern Kan. Ry. Co. v. Crocker

• Decision Date: 07 June 1889
• Parties: THE SOUTHERN KANSAS RAILWAY COMPANY v. WALTER CROKER
• Court: Kansas Supreme Court

21 P. 785

41 Kan. 747

THE SOUTHERN KANSAS RAILWAY COMPANY v. WALTER CROKER

Supreme Court of Kansas

June 7, 1889

Error from Allen District Court.

THE opinion states the case.

Judgment affirmed.

Geo. R Peck, A. A. Hurd, and J. G. Egan, for plaintiff in error.

Knight & Foust, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

Suit to recover damages for personal injuries received by the defendant in error in the line of his employment as a section hand of the Southern Kansas Railroad Company, commenced on the 12th day of July, 1886. Tried at the March term, 1887, of the district court of Allen county, resulting in a judgment in favor of the defendant in error for $ 2,654.88.

The defendant in error, Walter Croker, was employed as a section hand by the railroad company in August, 1885. He is a young man about twenty-two years of age, and before his employment by the plaintiff in error had never worked on any public works. From the time of his employment until the 30th day of March, 1886, he had been engaged in the ordinary duties of a section hand, doing all that he was ordered to do to keep the track in good repair. On the 30th day of March, 1886, in the afternoon, he was engaged in breaking rock for ballast, using for that purpose a stone-hammer that weighed three and one-half pounds. The handle of the hammer was a green stick, cut from the brush adjoining the track, and was crooked. The defendant in error had complained directly to the section foreman about the handle being defective, he having been slightly injured before by the use of such a handle. The foreman told him to work with this one as it was, and that he would get good handles in a few days. He struck a blow on a limestone rock with the hammer, and a small particle of the stone struck him in the eye and destroyed its sight. In two days after the injury the eye was taken out by oculists in Kansas City. The jury, in answer to special interrogatories, found as follows:

"1. Was the plaintiff, at the time of his employment by the defendant, a man of ordinary intelligence and information? A. Yes.

"2. How long had the plaintiff been in the employment of the defendant at the time of the injury complained of? A. About seven or eight months.

"3. Did the plaintiff understand what he was expected to do under his employment at the time he entered the service of the defendant? A. Yes.

"4. How long had the plaintiff been engaged in the use of the stone-hammer in question, before the day on which he was injured? A. About three or four days.

"5. Was the plaintiff familiar with the use of the stone-hammer in question, at the time of the injury received by him? A. Yes.

"6. Did the plaintiff know of all the defects, if any existed, in the handle of the hammer he was using, at the time he worked with it, and at the time of the injury he received? A. Yes.

"7. Could the plaintiff have put a new handle in the hammer-head if he had chosen so to do? A. No.

"8. Was the plaintiff at work for the defendant by the day, or by the month, at the time of his injury? A. By the day.

"9. Was the work of breaking rock while in the employ of the defendant such work as the plaintiff was competent to do? A. Yes.

"10. Which one of the three handles introduced in evidence is the one that plaintiff was using at the time a piece of the rock flew off and hit him prior to the day on which he was hurt, as alleged in this case? A. Either exhibits '2' or '3.'

"11. Were the three hammer-handles introduced in evidence, made by the workmen who were repairing the track and breaking rock with the plaintiff? [Objected.] A. Don't know.

"12. Did the foreman, Neely Frame, give the men who made the three hammer-handles in evidence, any directions as to the character of the handles that they should make? A. Don't know.

"13. Did the foreman, Neely Frame, give the men who made the handles any instructions whatever as to the length, thickness, straightness, or elasticity of the handles they were to procure?" A. Don't know.

"14. How much, if anything, did you allow to the plaintiff for the services of the doctors in Kansas City? A. $ 50.

"15. How much, if anything, did you allow to the plaintiff for the loss of time during period of time following the injury? A. $ 100."

The motion for a new trial was overruled, and the exceptions saved present the questions discussed by counsel for plaintiff in error. There are only two. The first is that at the trial the defendant in error was allowed to testify, that before he entered the employment of the railroad company, in August, 1885, he had not labored on public works of any kind. It is said that this was a mere subterfuge to excuse the plaintiff's own carelessness and negligence; that the court having allowed this to go to the jury, they had license thus given them to conclude that the plaintiff was not bound to exercise ordinary care and sense in doing the work. While we doubt very much whether any importance was attached...