Southern Kansas Ry. Co. v. Michaels

• Decision Date: 08 July 1892
• Citation: 30 P. 408,49 Kan. 388
• Parties: THE SOUTHERN KANSAS RAILWAY COMPANY v. O. P. MICHAELS
• Court: Kansas Supreme Court

30 P. 408

49 Kan. 388

THE SOUTHERN KANSAS RAILWAY COMPANY v. O. P. MICHAELS

Supreme Court of Kansas

July 8, 1892

Error from Sumner District Court.

ACTION to recover damages for personal injuries. Judgment for plaintiff, Michaels, at the November term, 1888. The defendant Railway Company brings the case here. The material facts appear in the opinion.

Judgment reversed.

Geo. R Peck, A. A. Hurd, Robert Dunlap, and O. J. Wood, for plaintiff in error:

1. The railroad company was not negligent in placing the switch stand where it did, and its position being obvious to the plaintiff, he assumed the risk of danger incident thereto. The tracks in a yard where switching is to be done must necessarily be close together. The manner of placing these tracks and the position of switches is a matter which must be left to the discretion and determination of the railroad company. As to one of its employes, it owes no duty to place its switch, switch stand or track in any particular position or at any particular point. The employe who engages to work in such a yard must take notice of the position of the tracks and of the switches about which he is to work, and must govern himself accordingly. If there is any danger incident to the use of these appliances, it is a danger and a risk which he assumes. See Tuttle v. D. G. H. & M. Rly. Co. 122 U.S. 189. See, also, Randall v. B. & O. Rld. Co., 109 U.S. 478; Twitchell v. G. T. Rly. Co., 39 F. 419; Lovejoy v B. & L. Rld. Corp., 125 Mass. 79; Smith v. W. & St. P. Rld. Co., 41 Am. & Eng. Rld. Cases, 289; Perigo v. C R. I. & P. Rly. Co., 52 Iowa 11; Wells v. Railroad Co., 56 id. 520; Mayes v. Railroad Co., 63 id. 562-568; McKee v. Railroad Co., 50 N.W. 209; Williams v. D. L. & W. Rld. Co., 41 Am. & Eng. Rld. Cases, 254; Lathrop v. Fitchburg Rld. Co., 41 id. 327; Doyle v. St. P. M. & M. Rld. Co., 41 id. 376; Kelley v. Railroad Co., 11 A. 659; Ryan v. Railroad Co., 26 Am. & Eng. Rld. Cases, 344; Railroad Co v. Austin, 40 Mich. 247; Wood, Mas. & S., § 382; Goulin v. Bridge Co., 64 Mich. 190, 194, 195; Batterson v. C. & G. T. Rld. Co., 53 id. 125; M. C. Rly. Co. v. Smithson, 45 id. 212; Johnson v. Water Co., 45 N.W. 807; Vincennes Water-works v. White, 24 N.E. 747; Boyle v. N. Y. & N. E. Rld. Co., 23 id. 827; Norf. & West. Rld. Co. v. Jackson, 8 S.E. 370, 371, 372, 373; Brice v. L. & N. Rld. Co., 38 Am. & Eng. Rld. Cases, 38; Carbine v. Ben. & Rut. Rld. Co., 38 id. 45; G. C. & S. F. Rld. Co. v. Williams, 39 id. 292; Chicago &c. Rld. Co. v. Clark, 15 id. 261.

In the case of McQueen v. C. B. U. P. Rld. Co., 30 Kan. 691, this court held that McQueen, having had full opportunity to know of the condition of the wheels which were claimed to be defective, had assumed the risk, if any, and could not recover.

2. The court erred in refusing to permit the defendant to ask the plaintiff whether he did not call the attention of parties to the switch target in question.

3. There was error in giving and refusing to give certain instructions.

4. The court erred in failing to instruct the jury as to the elements of damage or the measure of damages. Knight v. Egerton, 7 Exch. 407; B. & O. Rld. Co. v. Carr, 17 A. 1052, 1054; McGowen v. St. Louis Ore & Steel Co., 16 S.W. 236, 239; Pa. Rld. Co v. Zebe, 33 Pa. 318, 327; Hadley v Baxendale, 9 Exch. 354.

5. The court erred in refusing to submit certain special questions to the jury, as requested by the defendant.

6. Certain findings of the jury are false, and show that the jury were either actuated by prejudice, or were too ignorant to try the case.

Halsell & Roy, for defendant in error:

1. In its first argument plaintiff in error ignores many Kansas authorities which are directly against it, and cites other cases for authority. It is very significant of a failing cause to see plaintiff in error desert its own court and, out of innumerable "personal injury" cases passed upon by our supreme court, cite only one Kansas case, McQueen v. C. B. U. P. Rld. Co., 30 Kan. 691, and which, upon examination, proves to be not at all in point. In St. L. Ft. S. & W. Rld. Co. v. Irwin, 37 Kan. 701, this court passed upon every question of any consequence raised by plaintiff in error, and defendant in error respectfully invites the court's attention to that case. See, also, Railroad Co. v. Kier, 41 Kan. 661; Railroad Co. v. Neiswanger, 41 id. 621; Railway Co. v. McCally, 41 id. 639; Rapid Transit Rly. Co. v. Fox, 41 id. 715; Railroad Co. v. Morgan, 43 id. 1; U. P. Rly. Co. v. Fray, 43 id. 750; Condiff v. Railroad Co., 45 id. 256; S. K. Rly. Co. v. Sanford, 45 id. 372; C. K. & W. Rld. Co. v. Blevins, 46 id. 370.

In 41 Am. & Eng. Rld. Cases, 327, cited by plaintiff in error, the deceased came to his death while shackling or coupling cars, by projecting timber, and the attorney for plaintiff surrendered his case upon the following admission in the record:

The plaintiff's counsel admitted, at the request of the attorney for defendant, "that lumber and rails are frequently transported over railroads with ends projecting beyond the cars, but such is a dangerous way of loading, and that in such cases shackling must be and is made by a brakeman stooping down below the timber or rails. The deceased brakeman might have safely shackled these cars in that way." Besides this fatal admission, the proof showed that the deceased voluntarily assumed a dangerous position when a safe one was provided for him and was as convenient. In support of these, plaintiff in error cites a number of authorities, but since the leading cases are not in point, the support cannot be, and we shall not follow them further, knowing that our own authorities are conclusive.

2. Passing to the second argument of plaintiff in error, which complains of the sustaining of the objection to the following question put to Michaels on cross-examination: "Q. After you were injured, did you not say to parties that you had repeatedly called the attention of parties to that target?" This was objected to and the objection was properly sustained: 1st. It was not proper cross-examination, for the general denial did not raise any issue of contributory negligence or waiver. 2d. It was not proper cross-examination. 3d. No foundation had been laid for such a question. 4th. If Michaels had so stated and it was proper to prove it as an admission, it could have been done by other evidence, if at all, and was therefore immaterial error. But that no such admission was made is shown by the findings, and by the fact that no evidence was produced by plaintiff in error on that point except the statement of the conductor, Flanders, whom Michaels contradicted and the jury disbelieved. Besides, the cross-examination is to be governed by the discretion of the court, and it has not been abused.

3. As to the third argument of plaintiff in error: The fourteenth instruction was as favorable to defendant below as the law is, if not more so. See Irwin case, 37 Kan. 712. Instructions 13 and 17, when taken in connection with the fourteenth and all the other instructions, are very favorable to the road. The objection to the eighteenth instruction is wholly untenable for the same reason above given, and, under the same authorities cited, it is correct. Indeed, the court should have gone much further, and given instructions Nos. 1 to 6, inclusive, and Nos. 9 and 10, asked by defendant in error, as they are unquestionably the law.

4. The plaintiff in error complains that the court failed to instruct the jury on the measure of damage. A very short and pertinent answer to this is, that the defendant below never asked any such instructions. Neither did it save any exception to the failure of the court to so instruct, and it is therefore estopped from making complaint. 44 Kan. 572. See, also, 36 Kan. 90; 43 id. 181, 451; 45 id. 65, 580; 46 id. 245.

5. The fifth argument seems too trivial to notice. This question should not have been submitted, because it was wholly immaterial, and because the evidence was so clear that there was only one answer to be given to either the thirteenth or fourteenth question. The uncontroverted evidence was that the defendant placed the stand in question upon the ground; it, therefore, knew better than any other person could know of the condition and situation of the switch stand and target, and the submitting of questions 13 and 14 was trifling with the court and jury. There was no necessity for findings called for in the fifty-first and fifty-second questions, for a finding under the evidence could not have possibly affected the verdict, as there was no conflict in the evidence. Indeed, there was no evidence which would have justified a finding.

6. The attorneys for plaintiff in error have, in their sixth argument, reflected upon the jury which tried this case. In noticing this reflection, we feel compelled to call attention to the conduct of the attorney who tried the case below. We were not permitted by the court below to argue this cause to the jury. The record shows that after the case was closed the attorneys for both the plaintiff and defendant procured from the court permission to argue the cause to the jury for one hour and a quarter on a side; that an agreement was made that James A. Ray should open the case for plaintiff in 30 minutes, and the court was to notify him when his time was consumed. The 30 minutes were so occupied, and said Ray was by the court stopped. Whereupon the defendant's attorney waived his agreement, and succeeded in getting the court to prohibit the plaintiff's attorney from arguing the case further or concluding the argument begun, and thus, too, in the face of an express agreement to the contrary.

The court submitted to the jury 56 special interrogatories to be answered, but refused to allow ...