The Atchison v. Bancord

• Decision Date: 10 January 1903
• Docket Number: 12,841
• Citation: 66 Kan. 81,71 P. 253
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JEROAM E. BANCORD, as Administrator, etc

71 P. 253

66 Kan. 81

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JEROAM E. BANCORD, as Administrator, etc

No. 12,841

Supreme Court of Kansas

January 10, 1903

Decided January, 1903.

Error from Shawnee district court; Z. T. HAZEN, judge.

STATEMENT.

THIS action was brought by Jeroam E. Bancord, as administrator of the estate of John Bancord, deceased, against the Atchison Topeka & Santa Fe Railway Company, to recover damages for the death of John Bancord, which, it is alleged, occurred by reason of the negligence and wrongful acts of defendant.

John Bancord was at the time of his death in the employ of the defendant as a laborer, working in its scrap-yard at Topeka. In this yard there is a turntable used in moving disabled engines and defective cars from one part of the yard to another. On the date of the injury one Pettitt, an engineer in charge of a compressed-air motor, called to a workman by the name of Laycock to bring a man and assist in the moving of a dead and dismantled engine. This engine was to be moved from the north to the south part of the yard, across the turntable. Laycock directed Bancord to assist. It was the usual and customary practice, in moving such engines, to place a plank between the motor and engine, in lieu of a coupling, to be there held in place by some one while the engine was pushed forward over the turntable by the motor watch being kept that the rails on the turntable were in line with the rails on the ground track. On this occasion Laycock procured the plank and placed it in position between the motor and engine, directing Bancord to stand to one side and watch that the rails were in alignment. Bancord said, "I will do this; you watch"; which Laycock did. The engine was pushed along, about one-third as fast as a man would ordinarily walk, from the ground track, upon, and over the turntable, Bancord walking between the motor and engine. Just as the engine passed over the turntable upon the ground rails at the south side, the plank was jarred or slipped from its place, and, although a signal to stop was promptly given and heeded, before the motor could be stopped Bancord was crushed to death between the motor and engine.

One of the specific acts of negligence charged against the defendant is that the turntable over which the engine was moved was permitted to become old, worn and out of repair to such extent that a heavy weight upon one end would cause it to tilt downward until the table rails would drop below the ground rails; also, that the ends of the table rails and ground rails had become worn and broken, leaving a space between; that this space and drop of the turntable caused the plank to slip out of place, resulting in death to Bancord. Upon this question, in response to special questions, the jury found as follows:

"1. Was the turntable over which plaintiff's intestate was working at the time he was injured, and the track upon it and the ground tracks coming up to it, in the same condition at the time of the injury that they had been during the time the deceased worked for the defendant in its shop yards? Ans. Yes, except as natural wear would change them.

"2. If you answer the last question in the negative, then state in what different condition the turntable and track upon it and the ground tracks coming up to it were at the time of the injury than they had been during the time that the deceased worked for the defendant in its shop yards. A. More worn.

"3. If you answer that the turntable and the track upon it and ground, tracks coming up to it were different at the time of the injury to plaintiff's intestate than they had been prior thereto while he was in the employ of the defendant in said yards, then state what changes had been made in those things and when such changes were made. A. No change except natural wear.

"4. Was the condition of the turntable, the tracks upon it, the manner in which the turntable worked, and the condition of the ground track to which the turntable track was set when they were moving the dead engine over it at the time of the injury to the deceased open and obvious to the persons working upon and around the turntable and tracks? A. Yes, in a general way."

"6. At the time the turntable was set for the ground track on which the dead engine was pushed by the motor across the turntable southward did the turntable track meet the ground track in the same manner that it had done when previously set in that way and so that the wheels of the dead engine could be run readily over the turntable track onto the ground track? A. Yes, in same manner, but engine did not pass readily.

"7. Did not John Bancord, the deceased, know, or have ample opportunity to know, of the condition of the turntable, the track thereon, and the ground track leading thereto and therefrom, prior to, and at the time of, the accident? A. Yes, he had opportunity. We do not know how ample."

"9. During all the time that the deceased was employed by the defendant company to work in its shop yards at Topeka was he not working in and around the turntable and at times aiding and assisting in pushing cars and dead engines from the turntable onto the ground tracks therefrom? A. Yes, in a general way.

"10. Was the center of the turntable resting upon the little wheels and tracks at the bottom of the pit on which the table revolves a few inches higher than the edges of the pit surrounding the turntable? A. Yes.

"11. Was it not necessary for the turntable to be constructed in that manner in order to revolve and work easily and properly? A. Not necessarily.

"12. In the manner in which the turntable was constructed, being higher in the center than at the edges, did not the table by reason of that, when a weight was shoved upon it from one side, tilt so that the rails upon the table would meet the rails of the ground track? A. Yes, even going below the ground rails.

"13. In the manner in which the turntable was constructed, when a car or engine was pushed across it upon the track and passed beyond the center of the turntable, did not the turntable then tip down so that the turntable track would be even with, or nearly so, and meet the ground track? A. Yes, and even below.

"14. Was not the condition specified in the last two questions the condition of the other two turntables in the yards of the defendant at Topeka during the time the deceased worked there? A. No.

"15. Was there any time when the turntable track on the table where the injury occurred, when set for the ground track at the south, tilted down several inches below the ground track? A. Yes.

"16. If you answer the last question in the affirmative, then state specifically the time when you find that occurred. A. When the weight was on it.

"17. At the time of the injury to the plaintiff, did not the turntable track come down and meet the ground track as it has always been accustomed to do, and did not the wheels of the dead engine pass over the turntable track upon the ground track all right? A. Yes, but engine did not pass over all right.

"18. If you answer the last question in the negative, then state whether the turntable track was higher or lower than the ground track and give the difference? A. Turntable dropped lower than ground, about two inches."

"21. Did John Laycock, when he obtained the plank and placed it between the air-motor and the dead engine, do it intending to hold it while the dead engine was being moved from the turntable onto the track south of it? A. Yes.

"22. Would John Laycock have done the work of holding the plank between the air-motor and the dead engine if John Bancord had not come and told him that he would do that work, and for him (Laycock) to do the watching? A. We presume he would.

"23. Did not John Bancord voluntarily go in and take hold of the plank for the purpose of keeping it in position between the air-motor and the dead engine as they were moving it across the table onto the south track? A. Yes, but he was ordered by his foreman to assist in this work.

"24. If you answer the last question in the negative, then state who ordered and directed him to do that? A. His foreman ordered him to assist in the work.

"25. Was not the condition of the turntable, track upon it, and the ground tracks coming up to it, as open and obvious to John Bancord while working in and around there as to any other of the employees of the defendant? A. Yes."

"27. Had John Bancord assisted in the work of pushing dead engines by use of a plank or timber placed between that and the air-motor prior to the time of his injury? A. Yes, once before, but not over this table.

"28. Had not John Bancord, prior to the time of his injury, assisted in moving dead engines by means of a plank or timber placed between that and the air-motor, and himself held the timber in position while it was being moved? A. Yes, as answered above.

"29. In case you find for the plaintiff, then state specifically and definitely the particular negligence which caused the injury to John Bancord. A. The negligence consisted in the defendant company allowing the turntable to tip below the ground rails, and the battered or worn condition of the ends of the rails, both on the table and the ground, and also the large opening between the rails on the table and the ground rails."

There were also a general verdict and judgment thereon for plaintiff. Defendant brings error.

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