The Atchison v. Seeley
| Decision Date | 06 July 1894 |
| Citation | 37 P. 104,54 Kan. 21 |
| Court | Kansas Supreme Court |
| Parties | THE ATCHISON, TOPEKA & SANTA FE, RAILROAD COMPANY v. ALFRED M. SEELEY |
Decided July, 1894
Error from Johnson District Court.
ACTION by Seeley against The Railroad Company to recover damages for bodily injuries. Judgment for the plaintiff. The defendant brings the case to this court. The facts appear in the opinion herein, filed July 6, 1894.
A. A Hurd, Robert Dunlap, and W. Littlefield, for plaintiff in error.
A Smith Devenney, for defendant in error.
OPINION
This was an action brought by Alfred M. Seeley against the Atchison, Topeka & Santa Fe Railroad Company to cover damages for personal injuries alleged to have been sustained because of the negligence of the railroad company. In his petition, he alleged that on April 2, 1889, he was in the employ of the Atchison, Topeka & Santa Fe Railroad Company, which operated and controlled a railroad extending from Kansas City to Chicago, known as the Chicago, Santa Fe & California Railroad Company.
He acted in the capacity of brakeman on a construction train and, on the morning of April 2, 1889, the construction train, composed of several box cars loaded with coal, with an engine attached, started from Coburn, Mo., in charge of a conductor, and when they reached the station of Courtney, in Missouri, the conductor and trainmen were ordered to attach to the train a car loaded with coal, and upon which there were two round iron smokestacks about 16 feet in length and two feet in diameter, and take the car so loaded with coal and the smokestacks to Wayne City, about a mile and a half distant. In obedience to this direction, the car so loaded was attached in front of the engine, and, by order of the conductor, Seeley took his station on the top of the coal car, which was being pushed in advance of the engine, in order to signal the engineer when they approached the switch where the car was to be placed, when it was his duty to leave the coal car and turn the switch.
While he was thus at his post, and in the act of passing along the end of the coal car in front of one of the iron smokestacks, which were lying loosely on top of the coal, with his back toward the engineer, and exercising due care, the engineer, well knowing the plaintiff's dangerous position in front of the smokestack, and not waiting for the usual and necessary signal from Seeley to slow up, as was his duty, carelessly applied the automatic air brake and air pump to his engine, and without any warning to the plaintiff of his intention to do so, thereby checking the speed of the train, and violently jerking the coal car, causing the smokestacks, which were lying loosely on the top of the car, to push forward, striking Seeley violently upon the breast and body, throwing him from the car, upon the rails in front of the train, and under the wheels of the car, whereby he was cut and badly bruised, his right leg was caught under the wheels, and crushed and mangled to such an extent that amputation near the knee joint was necessary in order to save his life, and he was otherwise permanently injured, to his damage in the sum of $ 15,000.
It was alleged that the smokestacks were improperly and defectively loaded, being "unscotched" and unfastened on top of the coal, and that Seeley had no connection with the loading and no knowledge of the negligent manner in which they were loaded, and was not guilty of any negligence which contributed to his injury. This negligence of the company is claimed to be the principal and proximate cause of the injury suffered. The answer of the defendant was, first, a general denial; next, that the common law was in force in Missouri, and that the injury was caused by the negligence of the fellow-servants of Seeley, or by his own carelessness or negligence.
Upon the trial, the jury found that on April 2, 1889, the Atchison, Topeka Santa Fe Railroad Company was the lessee of and operated the Chicago, Santa Fe & California railroad, and that Seeley was at that time in the employment of the lessee as brakeman. It was further found, that the defendant company was guilty of negligence in loading the smokestacks upon the coal car; and further, that the engine driver of the construction train was also guilty of a want of ordinary care in handling his train; but that the manner in which the smokestacks were loaded upon the car was the proximate cause of the injury. In answer to questions, it was found that the conductor ordered Seeley to hurry up and couple the coal car in front of the engine, and to hurry and get upon the front end of the coal car and keep a lookout ahead for danger until the place for switching should be reached, and that, in order to obey this order, he had to stand with his back to the smokestacks and to the engine, and therefore had no reasonable opportunity to observe the defectively loaded condition of the smokestacks, or the dangerous position in which he stood. It was further found to be the duty of the yard master to inspect the loads of all open cars before such cars were put into the trains for transportation, and that such yard masters were employes of a higher grade than that of brakeman on a construction train; and that the defendant company knew or could have known by the exercise of reasonable diligence that the smokestacks were dangerously loaded, and that if they had been "scotched" or fastened in some manner to the car Seeley would probably not have been injured. The jury found that Seeley was entitled to recover the aggregate amount of $ 7,943.25, which was made up from three items: $ 350 for loss of time from April 2, 1889, to November 1, 1889; $ 700 for the pain and bodily suffering endured since that date by reason of his injury; and $ 6,893.25 for the permanent disability, including interest from April 2, 1889.
The railroad company alleges error, and contends that the evidence fails to show that Seeley was in the employ of the Atchison, Topeka & Santa Fe Company when the injury occurred, but that it does conclusively show that he was in the employ of the Chicago, Santa Fe & California Railroad Company. There is testimony to the effect that the plaintiff in error had leased and was operating the Chicago, Santa Fe & California railroad on April 2, 1889, when Seeley was injured, and also testimony that he and the other trainmen associated with him were in the employ of the Atchison company as such lessee. It is true that there is much testimony tending to show that the Chicago road had not yet passed into the hands of the Atchison company, and that the officers of the former had employed Seeley and were still in the control of the road when he was injured. The form of the pay checks used tended to sustain this position. E. Wilder, however, who was secretary and treasurer of the Atchison company, stated positively that the Chicago road had been leased to and was operated by the Atchison company since the 1st of March, 1889, which was more than a month prior to the occurrence of the injury. Which one of the companies was controlling and operating the road was a question for the jury to settle, and having been decided upon conflicting evidence the controversy on that point is ended.
The principal contention in this case is, that the injury was the result of the negligence of the fellow-servants of Seeley for which, at common law, the company was not liable. It was admitted at the trial that the common law was in force in Missouri, where the injury occurred, and decisions of the supreme court of that state were introduced in evidence which showed that the common law in respect to the liability of the master has not been changed or modified by any statute of that state. The placing of smokestacks upon the top of a loaded coal car, without fastenings or guards, was a clear case of negligence on the part of those who loaded them and those whose duty it was to inspect and prepare the car for transportation. The bed of the car was filled with coal, and the smokestacks lay loosely upon the top, subject to be shaken off by a jerk resulting from the starting or stopping of the train. Neither Seeley nor any of the trainmen associated with him loaded or assisted in loading the smokstacks upon the car, and he...
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