The Atchison v. Rudolph

• Decision Date: 07 November 1908
• Docket Number: 15,298
• Citation: The Atchison v. Rudolph, 99 P. 224, 78 Kan. 695 (Kan. 1908)
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. ELIZABETH A. RUDOLPH

99 P. 224

78 Kan. 695

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. ELIZABETH A. RUDOLPH

No. 15,298

Supreme Court of Kansas

November 7, 1908

Decided July, 1908.

Error from Barber district court; PRESTON B. GILLETT, judge.

STATEMENT.

CHARLES T. RUDOLPH was a brakeman and an employee of the Atchison Topeka & Santa Fe Railway Company.On January 13, 1902 while engaged in the performance of his duties at Sharon, in Harper county, he fell in front of a moving car and was killed.His widow commenced this action in the district court of Barber county to recover damages on account of the death of her husband.She obtained judgment for $ 4000.The railway company brings the case here for review.

The deceased, while making a flying switch, got upon the brake-beam at the front end of a moving cattle car, holding himself in place by clasping one of the slats across the end of the car.The slat was old, defective, loose at one end and gave way, causing the deceased to fall in front of the car, where he was run over and killed.It was his duty to couple this car to another, and he was riding on the brake-beam for the purpose of performing such duty.The car was equipped with a coupler which coupled automatically by impact, and which the brakeman could operate without going between the cars when coupling or uncoupling.This coupler was so constructed that he could stand in an iron stirrup on one side of the car, and, while hanging to an iron handhold with the left hand, reach down and with the other hand operate the coupler by a lever.It was more convenient for Rudolph to operate the coupler when standing on the brake-beam than when in the position on the outside of the car made for that purpose, for the reason that he was a fleshy man and it was difficult for him to reach down and around the corner of the car to the lever.

The jury returned special findings of fact, which, so far as material in the consideration of the questions involved, read:

(Questions submitted by defendant.)

"(4) Ques.Is it a fact that while making a flying switch the said Charles Rudolph was standing on brake-beam of Atchison, Topeka & Santa Fe carNo. 51,340, in train No. 467, of which George T. Knight was conductor, F. W. Merrill, engineer, and H. J. Dice, fireman?Ans.Yes."

"(21) Q. Was or was not said car at the time in question equipped with couplers coupled automatically by impact?A.Yes.

"(22) Q. Was car No. 51,340, at the times in question, provided with stirrup, grab-irons or handholds in the ends and sides thereof for the greater security to the men in coupling and uncoupling cars?A. Stirrup and ladder on side; one grab-iron on sill at end.

"(23) Q. Were said grab-irons securely fastened?A.Yes.

"(24) Q. Had the said Charles Rudolph at any time objected to or protested against assisting in making such flying switches as was made at the time in question in this suit?A.No.

"(25) Q. Did the said Charles Rudolph voluntarily participate and assist in making whatever flying switches had been made with the trains with which he was at work, on and prior to the day in question in this action?A.No."

"(28) Q. Instead of making a drop of the cars by means of the flying switch, could not the crew have more safely accomplished the same purpose by running around the cars and thus dispense with the need of any one riding between the car and the engine, while in motion, to uncouple same?A.Yes.

"(29) Q. Had not conductor Knight, on the day Rudolph was killed, informed Charles Rudolph that it was more dangerous to make a drop of the cars by means of the flying switch than it was to accomplish the same purpose by means of running around the cars in the manner described by the witnesses?A.Yes."

"(40) Q. If you find for the plaintiff, then do you base your verdict on any negligence of the defendant as regards track or switch at or about the place of the accident in question?A.No."

"(44) Q. How near did the lever, on the car in question, connected with the coupling extend toward the outer edge of the car--that is, how far from the outer edge was the handle of said lever?A.About ten inches."

"(47) Q. Was the lever on the car in question in good working order at the time Rudolph uncoupled said car from the engine?A.Yes."

"(49) Q. Did Rudolph take hold of the handle of the lever and uncouple the car and engine just prior to the injury in question?A.Yes."

"(51) Q. Did Rudolph go between the car and engine to uncouple them because of any existing custom to uncouple cars in that manner?A.Yes.

"(52) Q. Was Rudolph in the habit of going between moving cars to uncouple them prior to the time of the injury in question?A.No.

"(53) Q. Were the acts of said Rudolph in riding between the cars and doing the things you may find he did do safe and prudent acts for him to perform at said time and place?A.Yes.

"(54) Q. Were the acts of said Rudolph in riding between the cars and doing the things you may find he did do unsafe and imprudent acts for said Rudolph to perform at said time and place?A.No."

(Questions submitted by plaintiff.)

"(1) Ques.State whether or not there was a custom generally practiced on the lines of the defendant of making flying switches.Ans.Yes.

"(2) Q. If you answer question 1 that there was such custom, state whether or not such custom had been generally followed for several years prior to the fatal injury to Mr. Rudolph.A.Yes.

"(3) Q. If you answer question 1 that there was such custom, state whether or not such custom was known to superior officers of the defendant having control of the operation of trains in territory diverging from Wellington, including the place where Mr. Rudolph was injured.A.Yes.

"(3a) Q. If you answer question 3 'Yes,' or in the affirmative, state whether such custom was acquiesced in by such officers.A.Yes.

"(4) Q. If you answer question 1 that there was such custom, state whether or not conditions frequently existed requiring brakemen in making flying switches

with cars coupled with automatic couplers to be in between the cars on the brake-beams.A.Yes.

"(5) Q. If you answer question 4 'Yes,' state whether or not it was common practice for brakemen to go in on the brake-beam in making flying switches with cars in defendant's trains equipped with automatic couplers.A.Yes.

"(6) Q. If you answer question 5 'Yes,' state whether or not such practice had existed for years before Mr. Rudolph's injury, with the acquiescence of the defendant.A.Yes.

"(7) Q. If you answer question 4 'Yes,' state whether or not one of such conditions was in having the handle of the lever for uncoupling so located that it would be either difficult or impossible for a brakeman to operate the same from the ladder or stirrup on the side of the car.A.Difficult, but not impossible.

"(8) Q. If you answer question 7 'Yes,' state whether or not the handle of the lever on the car from which Mr. Rudolph fell was so located that a brakeman of his build could not ordinarily operate it successfully from the ladder and stirrup.A.He could not.

"(9) Q. If you answer question 4 'Yes,' state whether or not one of the conditions requiring brakemen to stand on the brake-beam while making flying switches with cars equipped with automatic couplers is the automatic coupler working hard or binding.A.Was not.

"(9a) Q. Did defendant have in common use cars of other companies with end ladders requiring brakemen to go between the cars to use the same?A.Yes.

"(9b) Q. Does defendant provide part of its open-slatted cattle cars with handholds located at about the point where Rudolph used the slat to hold to?A.Yes.

"(10) Q. Are cars which do not have open-slatted ends provided with grab-irons located on the closed ends at about the point where Rudolph used the slat, so as to be available for use by brakemen standing on the brake-beam while making flying switches?A.Yes.

"(10a) Q. State whether or not, in a proper construction of cars for use as you find it was proper to use them, there should be a handhold provided at about the point where Rudolph used the slat.A.Yes.

"(10b) Q. State whether or not the car in question

had no iron handhold at about the place where Rudolph used the slat.A.No.

"(11) Q. State whether or not the west end of the car from which Mr. Rudolph fell had a regular iron handhold or grab-iron so located as to be sufficient for the purpose of supporting the brakeman while working on the brake-beam while making a flying switch.A.No.

"(12) Q. If you answer question 11 that there was no sufficient iron handhold or grab-iron, state whether or not a brakeman working on the brake-beam at the west end of that car, in making a flying switch, would ordinarily be called upon to support himself by holding onto the slats on the end of the car.A.Yes.

"(13) Q. If your answer to question 12 is 'Yes,' state whether or not the officers of the defendant company having charge of furnishing cars in use for its trains should have known that a brakeman making a flying switch from the brake-beam at the west end of the car from which Mr. Rudolph fell would probably rely upon the slats for support.A.Yes.

"(14) Q. State whether or not the proximate cause of Mr Rudolph's death was a fall in front of a moving car by reason of the breaking of a slat in the end of the car upon which he was relying for support.A.Yes.

"(15) Q. If you answer question 14 that the proximate cause was the breaking of the slat, state whether or not such slat broke by reason of a defect therein.A.Yes.

"(16) Q. If you answer question 15 that the breaking of the slat was due to a defect therein, state whether or not such defect had existed for at least three months prior to the...