The Atchison v. Elder

• Decision Date: 10 October 1896
• Docket Number: 8880
• Citation: 57 Kan. 312,46 P. 310
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. P. P. ELDER, as Administrator of the estate of E. E. Fuller, deceased

46 P. 310

57 Kan. 312

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. P. P. ELDER, as Administrator of the estate of E. E. Fuller, deceased

No. 8880

Supreme Court of Kansas

October 10, 1896

Decided July, 1896.

Error from Osage District Court Hon. William Thomson, Judge.

AFFIRMED.

ON October 24, 1890, at about 1 : 42 P. M., the westbound passenger train of the plaintiff in error was derailed and wrecked a short distance before reaching the depot at Wakarusa in Shawnee County,--the road at that point running nearly north and south. The train left Topeka about 10 minutes late, but it had made up very little, if any, of the time, before the disaster; yet it was running on a down grade at least 45 miles per hour at the time of the derailment. As to this train, Wakarusa was not a stopping point. A short distance north of that place the train passed over a three degree curve, a tangent about 200 or 300 feet in length, and over the greater part of a five degree curve where the derailment occurred. The train consisted of the engine and tender, -- the engine remaining on the track and standing upright with the tender trucks, or part of the same; a mail car, derailed and turned on its side; a baggage car and an express car, turned bottom side up and on different sides of the track; a smoking coach, which remained upright but across the track; a day coach, turned partially on its side to the right; a chair car, turned on its side to the right; a sleeper and a tourist sleeper, turned on their sides to the right. These last four remained coupled; but the couplings of the others were broken, and the baggage and express cars and the day coach were quite a distance from the engine and the mail car. The body of the tender, although heavily laden with coal and water, was thrown to the left a distance of 20 to 40 feet from the track and turned bottom side up, and was found opposite the sleeper. The distance from the first wheel-marks on the ties to the pilot of the engine was 1263 feet. The road-bed was ballasted with rock; but the evidence for the plaintiff tends to show that there were a good many unsound ties, and that the inner side of the outside rail on the five degree curve was much worn so as to be considerably lighter than the inside rail. The evidence is conflicting as to the elevation of the outside above the inside rail on the curve. The track was badly torn up by the wreck and many of the ties were broken and split. About 35 of the passengers were injured more or less.

E. E Fuller was a passenger, and occupied a seat on the left or east side of the aisle of the day coach. He was not thrown from it, nor apparently injured by the derailment. The southwest corner of the coach fell the lowest. A colored man was thrown down in the aisle and slightly injured, but no other person was apparently hurt in that coach. Rev. Bernard Kelly was in it, and he and Fuller got out of windows on the right hand or west side. They helped some other passengers out and then went to the chair-car; but finding the door closed Fuller kicked it open; Kelly assisting the passengers over the door to the platform, while Fuller helped them to alight from the platform to the ground. Both worked with their coats off -- the day being pleasant. This work occupied from 10 to 30 minutes, after which Fuller sat down and reclined against an apple tree near by. While in that position, N. Frankhouser, an acquaintance, passing, asked as to his condition, and he said he was hurt and reached around to his back or side to indicate the place of injury. He was sweating freely. Late in the afternoon a relief train took the passengers, including Fuller, back to Topeka, where he remained over night at the National Hotel. During the forenoon of the next day he called on Doctor Wasson, a dentist, who was an old acquaintance, and told him that he had escaped unhurt. Later in the day he went to Emporia and thence to Quenemo in Osage County -- his place of business -- where he boarded with his sister, Clara M. Crawford. He complained to her about his back hurting him and she gave him arnica and hot water to take to his room. She testified that he was in good health before the wreck, but afterward he stooped and limped; although she admitted that he suffered from hemorrhoids before the wreck. He complained to others of a pain in his side and back. Remaining several days at Quenemo, he went thence to his home at Kansas City, Missouri where he arrived about 10 days after the wreck. Mrs. Fuller testified that when he came home he was very pale and nervous and was suffering; that she examined the small of his back and found a black and blue spot across there about the size of her finger and noticed a great discoloration. She treated the ailment with hot water and arnica. Much evidence was given tending to show Fuller's changed condition after the wreck; -- his lameness and other indications of failing health. He had been an active business man, and continued at work much of the time until a month before his death, which occurred April 27, 1891. It appeared, however, that Fuller had been greatly afflicted with hemorrhoids at times, the same having become chronic, and during his last illness a rectal abscess formed. Indeed he seemed to have a complication of disorders. Several physicians treated him and inquired as to the history of his case, but he never mentioned the wreck to them; and his principal attending physician in his last sickness did not know of it until his death. He made no complaint to the Railroad Company, and did not prefer any claim against it. His last sickness was of about four weeks' duration. He was unconscious during the latter part of his illness and died in a comatose condition. The testimony of the medical witnesses is conflicting as to whether the symptoms -- described at much length in the evidence -- did or did not indicate a spinal injury.

Fuller left surviving him his widow and two children. P. P. Elder his father-in-law, was duly appointed administrator, and on September 12, 1891, commenced his action in the District Court of Osage County alleging that Fuller was injured by reason of the negligence of the Railroad Company, that he died from the effects of such injury, and claiming the sum of $ 10,000 as damages resulting from his death. The case was twice tried; the second trial resulting in a judgment in favor of the plaintiff below, June 28, 1892, for $ 3,000 and costs of suit; and this proceeding in error is instituted to reverse said judgment. Other facts appear in the opinion.

Judgment reversed.

A. A. Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error.

Pleasant & Pleasant, and J. W. Deford, for defendant in error.

MARTIN C. J. ALLEN, J., concurring. JOHNSTON, J. dissenting.

OPINION

MARTIN, C. J.

I. Some of the allegations of negligence find no support in the evidence; but it was alleged that the tender was not sufficiently and properly secured and fastened to its trucks that the track was in bad order and condition and unsafe for trains running at the excessive speed at which the train in question was propelled on a sharp curve; that the ties were decayed, the rails worn and too light, and the outer rail on the curve was nearly level with the inner rail, whereas it should have been considerably higher. There is no evidence of the insufficient fastening of the body of the tender to the trucks except the circumstance that it left them, turned upside down, and was thrown 20 to 40 feet to the left of the track. There is some evidence, however, as to the defective condition of the track in some of the particulars above named, and we are not clear that this condition had no agency in...