St. Louis & S.F. Ry. Co. v. Weaver

• Citation: 11 P. 408,35 Kan. 412
• Court: United States State Supreme Court of Kansas
• Decision Date: 09 July 1886
• Parties: THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. JOHN W. WEAVER

11 P. 408

35 Kan. 412

THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. JOHN W. WEAVER

Supreme Court of Kansas

July 9, 1886

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Harvey District Court.

ACTION brought by John W. Weaver against The St. Louis & San Francisco Railway Company, to recover damages for personal injuries. Trial at the January Term, 1885, when the jury found for the plaintiff, and assessed his damages at $ 10,000. In answer to special questions submitted to them, at the request of defendant, the jury made special findings of fact, as follows:

"1. What caused the plaintiff's injuries complained of in his petition? A. Wreck.

"2. If you find that he was injured by a wreck on the defendant's road, state the cause of the wreck. A Wash-out.

"3. If caused by a storm, state the nature thereof; whether it was of an unusual, violent and unprecedented character? A. An unusual rain, but not unprecedented.

"4. State whether or not a water-spout or tornado occurred that night in the valley above where the wreck occurred? A. No.

"5. Was the plaintiff injured as the result of his own negligence, or of the defendant's negligence; or was it the result of both his negligence and that of the defendant? A. Defendant's.

"6. If you find that it was the result of the defendant's negligence, state in what the negligence consisted. A. Improper construction of water-ways, and negligence on part of section foreman.

"7. If you find that an unusual storm occurred in the valley above the wreck that night, did plaintiff know or have reason to believe, before he reached the place where the wreck occurred, that such storm had prevailed? A. No.

"8. By what corporation or company was this railroad constructed? A. St. Louis, Arkansas & Texas.

"9. Did the company which constructed the road at the place where plaintiff was injured, use due care and diligence in the construction of the same? A. No.

"10. Who was the chief engineer and person who had charge of the construction of the road at the place where the accident occurred? A. Dun.

"11. Was the chief engineer who had charge of the construction of said road a skillful, competent and prudent man for the work in which he engaged? A. Yes, but liable to mistakes.

"12. If you find that the road was not properly constructed, state in what particular. A. Insufficient water-ways.

"13. Were the water-ways and water-gaps which were placed in the road at the time of its construction of sufficient capacity to carry off the water that fell in an ordinary and usual storm in that country? A. Yes.

"14. Was the road properly constructed at the place where the wreck occurred? A. No.

"15. If you find that it was not properly constructed, state in what particular it was defectively constructed? A. Insufficient water-ways.

"16. State whether or not the water-ways and water-gaps were of sufficient capacity to carry off all the water which the company had reasonable ground to believe would fall in that valley during any storm likely to occur? A. No.

"17. Did the men engaged in the construction of the road at the place of the accident exercise the highest practical diligence which capable and faithful railroad men would exercise under similar circumstances? A. No.

"18. If you find they did not, in what did their failure consist? A. In not providing a sufficient water-way.

"19. From the time of Downing's employment to the time of the accident complained of, had the defendant company, or any of its (officers, reason to believe that Downing was incompetent, unskillful, or unfit for the position which he held? A. No.

"20. Did the defendant, at the time it employed J. R. Ward as division roadmaster, and up to the time of the accident, have reason to believe that he, Ward, was a competent, skillful and capable man for the position which he filled? A. Yes.

"21. Was Samuel Lyman, at the time he was employed by the defendant company as general roadmaster, a competent, capable and skillful man for the position of general roadmaster? A. Yes.

"22. Was the defendant company or any of its agents or employes guilty of negligence in the construction or maintenance of its road at the place of the wreck? A. Yes.

"23. If you find that they were, what officers or servants were they, and in what did the negligence consist? A. Chief engineer; improper construction of the water-ways.

"24. If you find that the road was imperfectly constructed, state whether the attention of the company, or its officers, or employes, was called or directed to the imperfect construction? A. Yes.

"25. At what rate of speed was the plaintiff running his train when it came around the curve in sight of the point where the wreck occurred? A. Twelve to fourteen miles per hour.

"26. Was the plaintiff, at the time of the wreck, running his engine at a greater rate of speed than fourteen miles per hour? A. No.

"27. If you find that the plaintiff's injuries were caused by the negligent act, of the defendant, state specifically in what that act consisted? A. Improper construction of water-way, and failure of the section foreman to warn the train-men of danger.

"28. Was Charles Downing and the plaintiff engaged in the same common enterprise at the time of the wreck, subject to the control and direction of the same general master, engaged in the same common employment or pursuit? A. No.

"29. If you find that the water-way at the place of the accident was deficient in dimensions, was the fact thereof equally within the knowledge of the plaintiff and defendant, and did the plaintiff have as good opportunity to discover the same as the defendant? A. No.

"30. In what amount was the plaintiff actually damaged by reason of the injury complained of in his petition? A. $ 10,000.

"31. Were the water-ways in the valley at the place of the wreck of sufficient dimensions to carry off all the water which the defendant company, by the exercise of prudence and care, had reason to anticipate at the time of the construction of the road would fall in that valley? A. No.

"32. Would a water-gap fifty feet wide have carried off the water which came down the valley that night without running over the track? A. Don't know.

"33. Were the water-ways and water-gaps clear and unobstructed up to the time of the accident? A. Yes.

"34. Were the water-ways and gaps of the road at this point of sufficient capacity to carry off the water which came down the valley during the severest storms, from the time of the construction of the road to the time when the wreck occurred? A. No.

"35. Was G. W. Turner, the master carpenter who superintended the construction and maintenance of the water-ways at the place of the wreck, a competent, skillful and careful man in his business, and did he in such construction and maintenance use due care and skill? A. Yes.

"36. If you find he was not or did not, state in what particular he was negligent. (Not answered.)

"37. Was , the bridge inspector, whose duty it was to examine the water-ways at or near the place where the accident occurred a careful and skillful man; and did he, in the exercise of his duty, use a degree of care commensurate thereto? A. No.

"38. If you find he did not, state what he failed to do that he should have done. A. Ordered the culvert enlarged.

"39. Did the defendant company use due and adequate care to safely maintain its road-bed, water-ways and bridges at the place where the accident occurred? A. No.

"40. If you find it did not, state wherein it failed, and what particular officer, agent or employe it was who caused such failure. A. Building improper bridges; chief engineer.

"41. Did the defendant company, at the time it employed Charles Downing, have reason to believe him a sober, industrious skillful and competent man for the purposes of his employment? A. Yes.

"42. At what rate of speed did the plaintiff cross the bridge over Clear creek, about half a mile below where the wreck occurred? A. Between 10 to 14 miles.

"43. Did the plaintiff increase the rate of speed after passing Clear creek, before coming to the place of the wreck? A. Don't think he did.

"44. Some indications of hard weather had preceded plaintiff before reaching the place of the wreck; did plaintiff observe anything at Clear creek to indicate that there was high water along the road? A. Not dangerously high.

"45. What precautions, if any, did plaintiff take in running his train that night, after seeing the high water in Clear creek? A. Ordinary precaution.

"46. To what rate of speed, under the rules of the company, was plaintiff restricted in running over the bridge across Clear creek? A. Ten miles per hour.

"47. Under the rules of the company, was it the duty of the section foreman to pass over, or send men over the track ahead of freight trains, after a storm? A. Yes.

"48. What officer or employe of the railroad company had charge of keeping the track in repair where the injury occurred? A. Section foreman.

"49. Would a person, in the exercise of ordinary care and caution, such as would be exercised by a prudent man, have come up the valley in which the plaintiff was injured, under the conditions and circumstances that the plaintiff in this case did, after seeing the high water in Clear creek, without first either sending some one ahead or having reduced the rate of speed of the train, so as to have brought it entirely within his control? A. Yes.

"50. Was the water-gap at the place where the plaintiff was injured obstructed by flood-trash, grass, weeds, or otherwise, so as to prevent the free passage of water through the same prior to the storm on the night of the accident? A. No.

"51. Was not the water in Clear creek, when plaintiff crossed it higher than he had ever seen it prior to that time? A. Ye...