Stice v. Hines

• Decision Date: 11 March 1922
• Docket Number: 23,480
• Citation: 110 Kan. 763,205 P. 616
• Parties: IRA J. STICE, Appellant, v. (WALKER D. HINES, as Director-general and Federal Agent), JAMES C. DAVIS, as Federal Agent, etc., Substituted, Appellee
• Court: Kansas Supreme Court

205 P. 616

110 Kan. 763

IRA J. STICE, Appellant, v. (WALKER D. HINES, as Director-general and Federal Agent), JAMES C. DAVIS, as Federal Agent, etc., Substituted, Appellee

No. 23,480

Supreme Court of Kansas

March 11, 1922

Decided January, 1922

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

FEDERAL EMPLOYERS' LIABILITY ACT--Injury to Workman--Demurrer to Plaintiff's Evidence Wrongfully Sustained. In an action founded on the federal employers' liability act to recover for injuries to plaintiff while assisting in replacing upon the tracks a switch engine that had been derailed, held, as against a demurrer there was evidence sufficient to take the case to the jury on the issue of whether at the time of the derailment the track was being used in interstate commerce, the question of defendant's negligence, and the issue of assumed risk.

C. E Pile, and L. E. Goodrich, both of Parsons, for the appellant.

W. W. Brown, O. T. Atherton, and E. L. Burton, all of Parsons, for the appellee.

OPINION

PORTER, J.:

The action was founded upon the federal employers' liability act, and was brought to recover for injuries plaintiff sustained while assisting a wrecking crew in replacing upon the tracks a switch engine which had been derailed in the yards of the defendant at Parsons. The appeal is from a ruling sustaining a demurrer to plaintiff's evidence.

Plaintiff was obliged to show that he was employed in interstate commerce at the time of his injury, which occurred November 5, 1918. The track where the engine was derailed was known as the old K. C. & P. main track. At one time all trains passed over this track. The defendant company became the owners of it in 1889. Its use for passenger service had been abandoned for 31 years. The defendant concedes that part of this track is used as a switch track in the railway yards, but contends that the place where the derailment and the accident occurred had not been for a number of years used for any purpose, and that it had been abandoned. The railway yards and tracks of the defendant in Parsons run northwest and southeast. The general switch tracks and yards for the switching and movement of freight are located in the northwest part of the yards. A blue-print map was introduced in evidence, together with a stipulation of the parties in which the railway company admitted that the portion of the old K. C. & P. line south of the place of the accident was, on and before November 5, 1918, used to switch oil consigned to the city of Parsons from points outside the state, the oil being unloaded at what was known as the city oil platform. It was admitted that several industrial plants, referred to in the evidence as the Harvester Company's buildings, the Sprague warehouse, the marble works, the Britton coal office and bins, and the Parsons Poultry and Egg Plant, were all located on the track in question; but the defendant contended that the deliveries of shipments to these industries and warehouses, which were all north of Broadway, were made by entering the track at the north switch from that portion of the yard where freight trains came in and were broken up; also that the delivery of shipments of oil to the city of Parsons south of the place of the accident was made by entrance upon the track in question at the south switch; the defendant contending that none of these shipments passed over the portion of the track between Corning avenue, the place of the accident and the north side of Broadway.

In support of the demurrer the defendant quotes from the testimony of E. D. Wray, who was operating the switch engine at the time it was derailed. On cross-examination he testified that the last time he saw a passenger train on the old K. C. & P. main track was about '84; "I don't know exactly the last time I saw a freight train passing over the point where derailment took place. This track has not been used to run trains over for a few years." He testified that ordinarily they switched cars to the poultry and egg plant, the Britton coal yards, the marble works and the Sprague warehouse from the north end; that in switching oil shipments to the oil station of the city the usual and ordinary route was to come to this track from the south end; the engine that was derailed is a standard engine, one of five or six in the yards at Parsons. The engines were in a pool, and each was worked as it came the turn for that engine. "After engine No. 34 derailed, we left it and got another engine." The same witness, however, had testified in direct examination that they used the portion of the track in question if they had occasion to place cars there; and "we used that track to place them from both yards. If we could get in from the north end easier than we could get in from the south end, we would come in from the north end, and if we could come in from the south end easier we would come in from the south end. We handle the cars the closest and easiest way. During these years we have used the entire track. . . . The Harvester Company has a loading platform on the old P. & P. main; they can unload from both tracks. The unloading platform has been there ever since the Harvester Company has been built . . . 8 or 10 years."

J. G. Ehman, a switch-engine foreman of defendant for twenty-two years, testified that the switch track is known as the west track of the Parsons yards. "I know how the old P. & P. main was used by the company on November 5, 1918, and for some years before. That track was used for the industrial points . . . by the International Harvesting Company, Swalm Lumber Company, the old Bell Telephone Company." He had used the track to set out cars for the Blue Valley Creamery, the poultry and egg company, the Sprague warehouse and other industrial plants; and he said it was also used to unload oil for the city and to unload telephone poles. "On and before November 5, 1918, we used all the track in our switching operations." It is true that on cross-examination he said that cars were not set out to the Sprague warehouse from the south "very often." His testimony is, however, that at the time of the derailment they were going to the Sprague warehouse to "spot" a car.

The plaintiff sought to bring his case within the doctrine of Southern Railway Co. v. Puckett, 244 U.S. 571, 61 L.Ed. 1321, 37 S.Ct. 703. In that case a workman was injured in jacking up a wrecked car...