Southern Kansas Ry. Co. v. Walsh

• Decision Date: 07 March 1891
• Citation: 45 Kan. 653,26 P. 45
• Parties: THE SOUTHERN KANSAS RAILWAY COMPANY v. L. C. WALSH
• Court: Kansas Supreme Court

26 P. 45

45 Kan. 653

THE SOUTHERN KANSAS RAILWAY COMPANY v. L. C. WALSH

Supreme Court of Kansas

March 7, 1891

Error from Montgomery District Court.

THE opinion states the material facts. Judgment for plaintiff Walsh, on January 21, 1888. The defendant Railway Company brings the case to this court.

Judgment affirmed.

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

J. D McCue, and Wm. Dunkin, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action to recover for injuries received by L. C. Walsh while a passenger on one of the trains of the Southern Kansas Railway Company en route from Moline to Independence. The train was derailed between the points mentioned, and he alleged in his petition that the track of the railroad between the points named was out of repair and dangerous for travel; that the company willfully and wantonly permitted the rails to become battered and worn, the cross-ties rotten and unfit for use, and negligently tailed to use a proper quantity and quality of ballast on the track; and that on February 14, 1887, when the derailment occurred, the road was utterly unsafe and unfit for use. He avers that, as a result of this condition, the train was thrown from the track when running at a high rate of speed, and he was injured as follows:

"Severe wound on left side of the head, laying open the scalp for two inches in length, cutting through to the bone; also severe contused injury of left shoulder, and to the entire scapular region of the left shoulder, tearing the scapula from its muscular attachments, and tilting it forward; and also causing a separation of the first, second and third ribs from their sternal attachment; also causing a separation of the clavicle from its sternal attachment, throwing it forward and upward, permanently dislocating the said clavicle; also a severe contusion of the left lung, causing spitting and coughing of blood; also bruises in face and over various parts of the body."

A verdict was rendered in favor of Walsh, in which the jury assessed his damages at $ 5,246.

It is first insisted that the evidence was insufficient to sustain the verdict rendered, or to show any liability whatever on the part of the company. It appears that on February 14, 1887, Walsh purchased a ticket at Moline for a passage from that point over the Southern Kansas Railway to Independence, paying therefor the sum of $ 1.10. The train was behind time, and when it arrived at Moline he entered one of the coaches, seated himself, and proceeded on his journey until they reached a point about two miles east of Longton, where the train was derailed. Some of the coaches were overturned down an embankment and Walsh was severely injured. There is testimony tending to show that the track was in bad condition where the accident occurred; that the ties were unsound and not properly ballasted. It is shown and conceded that the immediate cause of the derailment was the breaking of a rail. It had been put in the track only two days before to replace one which had also been broken at the same place. The company contends that an examination of the broken place disclosed no flaws or defects which could have been detected by the exercise of the utmost caution and foresight, and that therefore the accident was fortuitous and unavoidable, for which it should not and could not be held liable. On the other side it is contended, that although there were no apparent flaws or cracks in the rail, that it was broken because it was not sufficiently supported by ties and ballast. Upon this question there is a sharp conflict in the testimony. The section-men who put in the rail two days before the occurrence of the wreck testified that the rail was placed on a solid bearing; that ties were placed under the end of the rail which broke off, and that soil and ballast were tamped about the ties so as to make the track solid and secure. On the other hand, there is positive testimony offered by Walsh that the rail which broke extended about two feet over a cattle-guard, the frame work of which was solid, and that the end which projected beyond the cattle-guard was spiked to ties, but that the ties were drawn or lifted from the ground at one end about six inches, and that the soil and ballast were not filled in and tamped under and about them. If the track was in this condition, it was dangerous and unfit for use, and this defect would fairly account for the breaking of the rail and the wreck of the train. In view of this testimony, and the finding of the jury that the section-men did not fill the space between the tie and the ground, but left the end of the rail with the ties attached suspended several inches from the ground, and that the ties at the place of the accident were unsound, we cannot say that the verdict is without support.

The company is not an insurer of its passengers nor liable for injuries resulting from unavoidable accident in the operation of passenger trains; but there is testimony tending to show a great lack of care in providing a safe road-bed and track, and "if the defendant could have prevented the accident by the utmost human sagacity or foresight with respect to their track, then the defendant is liable." ( Railroad Co. v. Hand, 7 Kan. 380.)

It is also contended that there was error in permitting testimony to be offered by Walsh in regard to the condition of the track at other points than where the wreck occurred. Of course, testimony of defects which did not cause the derailment nor contribute to the injury was not admissible. An examination of the record indicates that the purpose of the court was to confine the testimony to the condition of the track in the immediate vicinity of the place and near to the time where and when the train was derailed. The inquiry as to the condition of the company's track was considerably extended by both parties, and in many cases without objection, for the purpose of determining the real cause of the wreck; but as the trial proceeded, it soon became evident to all that the breaking of the rail caused the derailment of the cars, and the findings of the jury showed that they attributed the accident to this cause; and, looking at the testimony and findings together, we see nothing substantial in any of the objections to the admission of evidence.

Complaint is also made that the court erred in refusing to submit three special questions which were asked. No error was committed in this respect. A long list of particular questions was submitted and answered, and, so far as any facts inquired about in those refused were proper and material, they were covered by the questions that were submitted and answered. The principal question refused was: "Could any reasonable and ordinary foresight have anticipated the breaking of the iron rail...