The Atchison v. Allen

• Citation: 75 Kan. 190,88 P. 966
• Decision Date: 09 February 1907
• Docket Number: 14,877
• Court: United States State Supreme Court of Kansas
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al. v. H. W. ALLEN

88 P. 966

75 Kan. 190

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY et al. v. H. W. ALLEN

No. 14,877

Supreme Court of Kansas

February 9, 1907

Decided January, 1907.

Error from Marion district court; OSCAR L. MOORE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Transportation of Live Stock--Facilities to Feed and Water. It is incumbent upon a railway company carrying live stock to provide necessary and suitable yards and facilities for the care of stock shipped over its line in which stock in transit may be unloaded for rest, feed and water.

2. RAILROADS--Duty to Keep Stock-yards in Reasonably Safe Condition. It is the duty of the railway company to keep such yards, with their approaches and walks, in a reasonably safe condition, not only for the stock placed in the yards, but also for persons who accompany the stock as caretakers and who in the performance of their duties may find it necessary to go into or through the yards.

3. RAILROADS--Duty to Caretakers Inspecting Stock in the Yards. While the duty of feeding and watering the stock devolves upon the company, the caretakers accompanying the stock have a right to follow and inspect them and ascertain whether they are being given proper care, and the railway company is bound to exercise reasonable care for the safety of the caretakers while engaged in such business.

4. RAILROADS--Notice of a Defect--Presumption. The company is not only liable for injuries sustained by such caretaker by reason of defects in the walks in the yards of which it had actual knowledge, but also by reason of a patent defect which had existed so long that notice of it may be reasonably inferred.

5. RAILROADS--Notice Inferred--Special Finding Not Contrary to General Verdict. A general verdict for plaintiff, based on testimony that defendants in the exercise of reasonable diligence should have known of a defect which caused the injury, is not overthrown by a special finding to the effect that defendants had no actual knowledge of the defect.

William R. Smith, Lambert & Huggins, H. S. Martin, O. J. Wood, and Alfred A. Scott, for plaintiffs in error.

W. H. Carpenter, for defendant in error.

JOHNSTON C. J. GREENE, BURCH, MASON, SMITH, PORTER, JJ., concurring. GRAVES, J., not sitting.

OPINION

JOHNSTON, C. J.:

H. W. Allen shipped two car-loads of cattle from Burns, Kan., to St. Joseph, Mo., over the Atchison, Topeka & Santa Fe railway, and accompanied the cattle on the train as a caretaker. When the train reached Emporia the cattle were unloaded and placed in the stock-yards for rest and to be fed and watered. The stock-yards are adjacent to the railroad, and were then operated by Hatcher & Hatcher, under a contract with the railway company. The yards were enclosed and partitioned with fencing about five feet high, and on the top of the fence around the pens in which the Allen cattle were placed two planks were laid on crosspieces which were fastened to the posts and secured by brackets. The planks so placed were used as a walk, and also as a feed-board. Shortly before the time fixed for reloading the cattle Allen climbed upon the top of the fence and proceeded to walk around on the planks to inspect the cattle and learn if they had eaten the feed given them, and whether they needed more feed and water, and, while so walking around, one of the planks, which was resting on a decayed and defective support, gave way and he fell to the ground and was severely injured. He brought this action against the railway company to recover damages, and afterward the Hatchers, who were in the management of the stock-yards, were made defendants. The negligence charged against the defendants was in permitting the walk around the top of the pens to become and remain in a dangerous condition, in that an end of one of the crosspieces supporting the walk was rotten and had broken off, leaving no support for the plank upon which Allen stepped and from which he fell. On the trial the jury awarded Allen damages in the sum of $ 1750.

It is contended that the evidence did not warrant the verdict. First, it is said that after Allen had turned the cattle over to the manager of the stockyards and given orders to feed and water them he had no further business in the yard until the cattle were reloaded; that he was not required to climb the fence or use the walk from which he fell; that there were no steps leading from the ground to the top of the fence, nor was there any invitation to use the planks as a walk; and that if inspection of the cattle in the pens was necessary for any purpose it could have been made by looking over the fence or through the cracks between the boards. There was testimony, however, that the planks placed on the top of the fence around the pens were designed and used as a walk, so that the owners and caretakers of cattle could inspect them, and from that position ascertain if they had been given sufficient feed and water, and that it would have been difficult to have seen whether there was feed in the boxes and water in the troughs without a view from the top of the pen.

It was incumbent upon the railway company to provide necessary and suitable yards and facilities for the care of stock entrusted to it for shipment, in which stock in transit might be unloaded for rest, feed and water. (Kansas Pacific Rly. Co. v. Reynolds, 8 Kan. 623.) It was the duty of the company and those in charge of the stock-yards to keep such yards in a reasonably safe condition, not only for the cattle enclosed in the yards but also for the persons who accompanied the cattle and who in the exercise of their rights and duties as caretakers might find it necessary to pass about and through the yards. The trial court rightly advised the jury that after Allen left the train and went into the yards he was not entitled to that high degree of care which is due to a passenger upon a train, but that the company was held to exercise ordinary care and prudence to see that persons who rightly visited the yards for any purpose were not injured.

Caretakers who follow cattle which have been unloaded into the yards to be fed, watered and rested are not to be regarded as mere volunteers or as trespassers. Although the yards are owned by the company, and its agents and managers are charged with the duty of feeding, watering and caring for the cattle while in the yards, the accompanying owners or caretakers have a right to follow and inspect the cattle and see that they are receiving proper care. Allen was at least entitled to the protection and care due to a...