St. Louis

• Decision Date: 10 December 1887
• Court: Kansas Supreme Court
• Parties: THE ST. LOUIS, FORT SCOTT & WICHITA RAILROAD COMPANY v. W. H. IRWIN

16 P. 146

37 Kan. 701

THE ST. LOUIS, FORT SCOTT & WICHITA RAILROAD COMPANY v. W. H. IRWIN

Supreme Court of Kansas

December 10, 1887

Error from Sedgwick District Court.

ACTION against The St. Louis, Fort Scott & Wichita Railroad Company by W. H. Irwin, to recover damages for personal injuries suffered by him while serving the company in the capacity of a freight conductor. The plaintiff alleged that the company negligently constructed and provided a defective and unsuitable bridge upon its road, and that on December 6 1884, while Irwin was on a freight train in the discharge of his duties, the train passed over and across the low and defective bridge, and although acting with due care and caution, he forcibly and violently came in contact with the overhead timbers composing the bridge, and was thereby violently thrown down from said train, and was injured in his head, spine, body, and limbs, disabling him from performing any manual labor, causing him to linger in great bodily pain and mental anguish, and making him an invalid for life. The company answered, denying that it was negligent, and alleging that the injury was the result of his own carelessness and negligence. At the October Term, 1886, of the district court of Sedgwick county, the cause was tried with a jury, which in a general verdict, awarded the plaintiff $ 12,000. The following findings of fact were also returned in response to particular questions proposed by the respective parties:

QUESTIONS BY DEFENDANT.

"1. Is the bridge referred to in this action by the plaintiff and the witnesses, a standard Howe truss bridge? No.

"2. Is the Howe truss bridge referred to in this action a standard railroad bridge in general use by railroad companies, in the state of Kansas and other states? Do not know.

"3. What is the height of the bridge in question in this case from the top of the rail on the track to the under side of the top chord or beam? Cannot determine.

"4. What is the distance from the top of the rail to the top of the caboose, both at the outer edge and at the center of the caboose? Cannot determine.

"5. What is the distance from the top of the rail on the ground to the brace, by a line drawn perpendicularly? Cannot determine.

"6. What is the distance from the top of the caboose proper, to the under side of the top chord or beam of the bridge? Cannot determine.

"7. How far do you find it is from the top and outer edge of the caboose on which plaintiff was injured, to the corner brace of the bridge, by a line drawn perpendicularly? Cannot determine.

"8. What act do you find the plaintiff was engaged in at the time he came in contact with the brace? Attending to his duties.

"9. What part of plaintiff's body came in contact with the brace? Left side, near the back.

"10. How far from the caboose was plaintiff when he saw the Santa Fe train had stopped? One to four cars from the caboose.

"11. After plaintiff saw that the train on the Santa Fe road had stopped, to what, if anything, was he then giving his attention till he was struck by the brace? Giving his attention to his train.

"12. Did McGinnis, the agent at El Dorado, at any time when requested, refuse to flag the Santa Fe crossing? No.

"13. At whose request did Leggett, the brakeman, flag the Santa Fe crossing on December 6, 1884? By conductor W. H. Irwin.

"14. How long had plaintiff been acquainted with the bridge in question at the time of the accident? About three months

"15. Was plaintiff at the time of the accident in the full possession of his faculties, and had he prior to that time had reasonable opportunities to know all about the bridge and the manner of its construction? To the first part of the question, yes; to the second part of the question, no.

"16. Was there any place on the caboose used by the plaintiff at the time of the accident, upon which plaintiff could have stood erect and passed through the bridge without injury? Yes; in the center of the car.

"17. How long had plaintiff been operating trains on that part of defendant's road on which the bridge in question is situated, prior to the accident? About three months.

"18. How many times per day did plaintiff pass through said bridge while in the service of defendant and operating trains over that part of defendant's road? Usually twice per day.

"19. Could the plaintiff, during the time he was in the service of the defendant, by the use of ordinary care and prudence, and by making use of his ordinary faculties, have ascertained the character of the bridge in question, and the manner of its construction? No.

"20. How many times per day, during the daytime, did plaintiff pass through the bridge while in the service of defendant? Usually once per day.

"21. Had plaintiff seen the corner braces in the bridge in question prior to the time of his injury? Cannot determine.

"22. Did the plaintiff, prior to the time of his injury considering the length of time he had been in the service of the railroad company, and especially of defendant, have a reasonable opportunity to inform himself of this bridge and the manner of its construction with regard to the corner braces and their proximity to the top of the ordinary caboose cars used on defendant's road? No.

"23. Did the plaintiff at any time prior to his injury complain to defendant, or any of its officers, of the dangerous character of the bridge in question? No.

"24. In what direction was Irwin's face at the time the accident occurred -- to the east, or west? Northwest."

QUESTIONS BY PLAINTIFF.

1. Were the braces on the bridge in question in such close proximity to the top of cars of ordinary height as to unnecessarily increase the risk and danger to which the employes engaged in running cars through said bridge would be exposed? Ans.: Yes.

"2. Was the plaintiff injured by coming in contact with said bridge and braces, on the 6th of December, 1884, while in the necessary and proper discharge of his duty as a conductor of a freight train, while in the employ of the defendant? A. Yes.

"3. Was the plaintiff injured while in the exercise of ordinary care and prudence on his part, having regard to the management of the running of the train, the time, place and circumstances, and his means of knowing to what risks he was exposed at that time and place? A. Yes.

"4. Was the plaintiff guilty of any negligence upon his part having regard to all the facts and circumstances under which he was placed at that particular time and place? A. No.

"5. Is it not true that the plaintiff was ignorant of the precise distance of the said braces from the railroad track, and from the top of the car, and ignorant of the risk he was exposed to at that time? A. Yes.

"6. If you answer 'Yes' to the last question, then is it not also true that the plaintiff could not even by the exercise of ordinary care and prudence on his part have known just the risk and danger to which he was exposed at that time and place, having regard to the facts and circumstances that surrounded him at that time and place? A. Yes, it is true.

"7. Do you find as a fact that under part of this bridge a man of ordinary size can pass with safety while standing on an ordinary car, while standing on another part of the car he would be struck on the shoulders, or below the shoulders? A. Yes.

"8. If you answer 'Yes' to the last question, then does not such construction of this bridge render it more dangerous, and more deceptive to employes as to the risks they incur while standing on a car passing through, than if the bridge were low enough to strike a man while standing on any part of the car? A. Yes, it is.

"9. Do you find that the railroad company used any guards or provided any warnings for employes to apprise them of the danger at this bridge? A. No.

"10. Is it gross and wanton carelessness on the part of the company, as respects the safety of its employes, to erect a bridge with the braces in the position they occupy on the bridge in question? A. Yes.

"11. Was this a standard bridge, and of approved construction having regard to the safety of employes, as claimed by the railroad company? A. No."

The railroad company moved to set aside the verdict, and for a new trial, on the grounds of irregularities on the part of the court and the jury during the trial; misconduct of the plaintiff and his counsel during the trial; and excessive damages; and that the verdict is not sustained by sufficient evidence, and is contrary to law. The court overruled the motion, and gave judgment in favor of Irwin for the sum of $ 12,000. Exceptions were taken to the rulings of the court on the motion, and in the rendition of judgment. The Railroad Company brings the case to this court for review.

Judgment affirmed.

J. H. Richards, and Harris, Harris & Vermilion, for plaintiff in error.

Houston & Bentley, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

It is earnestly contended by the plaintiff in error that the evidence is insufficient to sustain the finding that the railroad company was negligent in the construction and maintenance of the bridge which occasioned the injury; and that even if the company was negligent, the testimony shows that at the time of the accident Irwin was not exercising that prudence and care which was required of him, and hence ought not to recover. The testimony shows that the bridge in question is built over the Walnut river, about one-half mile from the station at El Dorado. It was so constructed that the top beams were sufficiently high to permit a person standing on the center of the top of a box car or caboose to pass through without colliding with these timbers, but there were braces, extending from the posts of the bridge to the top beams, which were...