The Atchison v. Lannigan
| Decision Date | 09 November 1895 |
| Docket Number | 7776 |
| Citation | 56 Kan. 109,42 P. 343 |
| Court | Kansas Supreme Court |
| Parties | THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. PATRICK B. LANNIGAN |
Decided July, 1895.
Error from Johnson District Court.
ACTION by Patrick B. Lannigan against The Atchison, Topeka & Santa Fe Railroad Company to recover damages for personal injuries. Plaintiff recovered judgment and defendant brings the case to this court. All the material facts are stated in the opinion herein, filed November 9, 1895.
Judgment affirmed.
A. A Hurd, W. Littlefield, and O. J. Wood, for plaintiff in error.
A Smith Devenney, for defendant in error.
OPINION
The defendant in error, who was plaintiff below, was employed as a brakeman on the railroad operated by the defendant, on a freight-train running between Argentine, Kan., and Marceline, Mo. At 2 o'clock in the morning of March 3, 1890, at Norborne, Mo., his right hand was crushed between the dead-woods of two freight-cars, which he was coupling. This action was prosecuted to recover damages for the injury then received. The petition is very long, and alleges many acts of negligence as grounds of recovery, but at the opening of the trial the plaintiff announced that he would rely solely on the allegations of negligence in furnishing the defendant a defective lantern with which to perform his work. All other charges of negligence were eliminated from the case. The jury rendered a general verdict in favor of the plaintiff for $ 6,300, and also returned answers to special questions submitted by both parties.
It appears that the plaintiff had been employed by the defendant 53 days. He had never been furnished with a copy of the rules. The lantern furnished him, after he commenced working on the train, of which Clark was conductor, was an old one. It smoked the globe so that it gave a poor light. Five or six days before he was hurt Lannigan complained to the conductor, and requested that a good lantern be furnished him. This the conductor promised to do, and directed him to continue to use the old one until a new one could be obtained. On the night of the accident the train started from Marceline. The lantern was cleaned before the train left Marceline, and the plaintiff cleaned it again by wiping the globe and scraping the burner at Carrollton, about half an hour before the accident. At Norborne it became necessary to couple two freight-cars equipped with double dead-woods, which rendered the task more dangerous than where the cars are built with single dead-woods. The night was dark, and his lantern had again become smoked to such an extent that he could not see clearly. He did not know that the moving car had double dead-woods, and in the dim light did not see it until after the coupling was made and his hand crushed.
It is contended that, under the findings of the jury, the plaintiff was not entitled to judgment. The first and second questions submitted by the defendant, and the answers of the jury to them, are as follows:
On these findings counsel argue that the answers given by the jury are equivalent to saying that no defect existed. The plaintiff on the witness-stand had testified, "I couldn't tell you what the defect was," and the was no evidence showing wherein the mechanical construction of the lantern was faulty, but it was abundantly shown that the globe of the lantern was soon dimmed with smoke so that it gave but a poor light. We do not think it was absolutely essential to the plaintiff's right of recovery that he, or any witness called by him, should be able to state definitely and correctly why the lantern failed to burn properly. It is ordinarily very easy to determine whether a lantern works satisfactorily or not, but it would require an expert to find and remedy the particular defect in one. A watch might be utterly useless as a timepiece, and fail to run at all, and a witness knowing the fact be yet unable to point out the particular part of the mechanism which was defective. It certainly would not be claimed that, because a witness was unable to name the mechanical defect in the watch, he could not testify that it was defective. It was sufficient to show that the lantern did not give a reasonably good light, and was unfit for a brakeman's use. It would have been absurd to require the jury to state what defect caused the lantern to smoke.
The plaintiff's injury was received in Missouri, where the common-law rule with reference to the liability of an employer to his employee for injuries occasioned by the negligence of a fellow servant obtains.
The jury answered the twenty-fifth and twenty-sixth questions, asked by the defendant, as follows:
It appears that the cars pushed by the engine were going at a rather rapid rate for making a coupling, and the plaintiff in error claims that this finding of the jury is to the effect that the plaintiff's injury resulted from the negligence of the engineer, who was a fellow servant, and not from the defective lantern. In this, as with all similar accidents many circumstances concurred in producing the injury. There were the double dead-woods on both cars, greatly increasing the difficulty in making a coupling and withdrawing the hand without injury. There was the stationary car on the one side, and the moving car on the other. It was absolutely indispensable that one car should be pushed up to the other in order that the...
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