[Copyrighted Material Omitted]
Error
from Sedgwick District Court.
ACTION
brought by Maggie Willis, as administratrix of the estate of
Charles R. Willis, deceased, against The St. Louis, Fort
Scott & Wichita Railroad Co., and The Ellsworth
McPherson, Newton & Southeastern Railway Co., to recover
damages for the death of the intestate, Charles R. Willis
her husband, caused, as she alleged, by the negligence of the
defendant railroad companies.
The
material parts of her petition are as follows:
"That
said Charles R. Willis, deceased, was, on the 28th day of
June, 1885, in the employment of both defendants, at their
request, as brakeman and laborer for defendants, and that on
said day, while discharging his duties at defendants'
request as such brakeman and laborer, he was riding on one of
the cars belonging to the defendants, going over the
Ellsworth, McPherson, Newton & Southeastern Railroad from
Newton, Harvey county, Kansas, to El Dorado, Butler county
Kansas, said car being attached to a locomotive and other
cars, all belonging to defendants, and under their control
and under the management of their servants, agents and
employes; that the car on which said Willis was riding was
old, worn, and defective, and the other cars and the
locomotive attached thereto were also unsound, defective, and
unfit for use as rolling stock upon the road, and the track
itself was uncompleted, and in bad condition, and it was
unsafe and dangerous to pass cars thereover -- all of which
defendants and their agents knew, but of which said Willis
was ignorant. Nevertheless, the defendants negligently,
wrongfully and knowingly suffered and caused all of said cars
and the said locomotive and the said track to be used in
passing said cars and locomotive to and fro over said track;
and while Charles R. Willis, deceased, was riding on the car
above mentioned, in Harvey county, passing from Newton to El
Dorado, as aforesaid, engaged in the discharge of his duties
as brakeman, as aforesaid, at the request of said defendants,
and while he was exercising due care and caution, the said
car and the other cars and locomotive thereto attached and
propelling the same, were by the reason of the defective,
unsound and unsafe condition of all said cars, locomotive and
track, and the negligence of defendants and their employes --
other than said Willis -- in handling, controlling and
operating said cars and locomotive over said track in an
unskillful and careless manner, thrown from the track with
great violence and a sudden shock, whereby, and by reason
whereof, the said Willis, without any fault or neglect of his
own, was unavoidably and forcibly thrown to the ground from
the said car on which he was riding, and falling on the track
or near there, in front of the wheels of the cars, the said
wheels ran upon and across him, crushing and lacerating his
limbs, and fatally wounding him, so that after lingering in
agony and pain for about one hour, he died from the effects
thereof."
Each of
the defendant railroad companies filed a separate answer,
pleading a general denial, and alleging that the injury was
the result of and was directly caused by the negligence and
carelessness of the said Charles R. Willis. Trial at the
February Term, 1886, and verdict and judgment for the
plaintiff for $ 5,000. Special questions were submitted to
the jury, at the request of the plaintiffs in error, and
answered as follows:
"1.
Was there at this time and prior to this accident, a
corporation known as the Ellsworth, McPherson, Newton &
Southeastern Railroad Company? A. The defendants so claim.
"2.
Was there a corporation known at this time as the West Kansas
Construction Company? A. According to the evidence, yes.
"3.
Was there any contract between the said Ellsworth, McPherson,
Newton & Southeastern Railway Company and the West Kansas
Construction Company, for the construction of the road from
the city of El Dorado to the city of Newton, and was that
contract in writing, and was said road built under said
contract? A. No, the contract was made with Mr. , of New
York.
"4.
Is it not a fact that the St. Louis, Fort Scott & Wichita
railroad company was not a party to said contract? A.
Indirectly, it was.
"5.
Is it not a fact that the St. Louis, Fort Scott & Wichita
railroad company did not construct said railway? A. In some
respects they did.
"6.
Is it not a fact that D. P. Jones was president of the West
Kansas Construction Company? A. The charter so states.
"7.
Is it not a fact that John Gaffney was the boss track-layer
for the West Kansas Construction Company in the construction
of said road from the city of El Dorado to the city of
Newton? A. Evidence shows that he was in charge of the work
in question.
"8.
Is it not a fact that N. S. Woods was the engineer of said
road from El Dorado to Newton for said West Kansas
Construction Company? A. Evidence tends to show that he was
engaged a portion of his time in the construction of the road
from El Dorado to Newton.
"9.
Is it not a fact that the said D. P. Jones had charge of the
construction of said road, under said contract in behalf of
the West Kansas Construction Company? A. Evidence in
conflict; no evidence to show personal supervision.
"10.
Is it not a fact that the said N. S. Woods was subject to his
orders and control? A. Do not believe that he depended or
looked to him for orders, there being no acceptable or
sufficient testimony of that fact.
"11.
Is it not a fact that the said John Gaffney was subject to
the immediate orders and control of said N. S. Woods and the
said D. P. Jones? A. We believe that he was subject to the
orders of N. S. Woods.
"12.
Is it not fact that John Gaffney had the immediate charge of
the supply train, including the car and engine connected
therewith? A. We believe from the evidence he had, so far as
to informing them what supplies he wanted.
"13.
Is it not a fact that the St. Louis, Fort Scott & Wichita
Railroad did not direct or control the construction of said
road, or the men employed in and about the construction
thereof? A. We do not so understand it.
"14.
Is it not a fact that the deceased, C. R. Willis, had been
discharged or suspended from the employment of the St. Louis,
Fort Scott & Wichita Railroad, for some time before he
went to work on the construction of the Ellsworth, McPherson,
Newton & Southeastern Railway? A. Not discharged.
"15.
Is it not true that he worked on the construction of said
road after the time he went there until the time of his
death? A. Evidence shows that he was at work on the train
that hauled supplies for said road.
"16.
Is it not true that the engine and car with which the said
Willis was connected at the time of his death, had been
before that for some time leased or rented or hired to the
West Kansas Construction Company, for which it was to pay the
said railroad company a compensation therefor? A. There was
no evidence showing that there was any compensation paid for
the use of said engine and said car.
"17.
Is it not a fact that the time and accounts of the said
messenger and said Willis, deceased, and other brakemen, were
kept separately and marked on the rolls of the West Kansas
Construction Company? A. The accounts and time were kept on
the rolls of the St. Louis, Fort Scott & Wichita Railroad
Company, but can't say that they were kept separately.
"18.
If you find the said Willis, deceased, has not been paid, is
it not a fact that the West Kansas Construction Company owes
him for his services? A. We do not so find it.
"19.
Is it not a fact that the Ellsworth, McPherson, Newton &
Southeastern Railway did not employ anybody or pay anybody in
the construction of its road, excepting the West Kansas
Construction Company? A. Do not know.
"20.
Is it not a fact that the Ellsworth, McPherson, Newton &
Southeastern Railway Company did not exercise any control or
direction whatever over the engine or cars or men employed in
the construction of its railway, or in the mode or manner of
the construction thereof? A. Evidence incomplete.
"21.
Is it not a fact that the only action by the Ellsworth,
McPherson, Newton & Southeastern Railway, was by and
through its president, J. W. Miller, in the accepting of the
road, for the purpose of determining if it was built in
accordance with the contract? A. No evidence to show that.
"22.
Is it not true that the Ellsworth, McPherson, Newton &
Southeastern Railway Company did not accept the said road or
any part thereof, until after the 1st day of July, 1885, and
until after the same was built and completed from the city of
El Dorado to the city of Newton? A. Evidence does not show
when officially accepted.
"23.
Who were the principal persons in charge of the construction
and in the control and the operation of the Ellsworth,
McPherson, Newton & Southeastern Railway, from the
beginning of its construction to the time of its completion
and acceptance, July 1, 1885? A. J. W. Miller, N. S. Woods
and John Gaffney, according to the evidence.
"24.
When, if at all, did the Ellsworth, McPherson, Newton &
Southeastern Railway Company become consolidated with the St.
Louis, Fort Scott & Wichita Railway, with reference to
the time of the accident in question -- was it before, or
after? A. No date is given in evidence.
"25.
What do you find was the cause of the car jumping the track
at the time Willis was killed? A. Train running at too great
a speed for the condition of the road and the make-up of the
train.
"26.
What position was Willis occupying at the time he was thrown
from the box? A. At the end of the car near...
