The Atchison v. Slattery

• Decision Date: 05 December 1896
• Docket Number: 9070
• Citation: 46 P. 941,57 Kan. 499
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. M. FRANK SLATTERY

46 P. 941

57 Kan. 499

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. M. FRANK SLATTERY

No. 9070

Supreme Court of Kansas

December 5, 1896

Decided July, 1896.

Error from Sedgwick District Court Hon. C. Reed, Judge.

AFFIRMED.

Judgment affirmed.

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

J. D Houston, and J. F. Craig, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.

This action was brought by M. Frank Slattery against the Railroad Company to recover for personal injuries sustained by him in a collision between a switch-engine upon which he was riding, and a push-car, in the yards of the Railroad Company at Wichita. He was employed by the Company as a yard-clerk, and his duties consisted mostly of ascertaining the numbers of freight-cars upon their arrival in the yards, making a list of them and marking their points of destination. He received a list of the cars in each train from the conductors of the trains as they arrived, and from such list personally examined the cars mentioned therein; and for such purpose he was obliged to visit all parts of the yards, which were about two miles in length. On account of the length of the yards he frequently rode on the switch-engine from one part of the yards to another. On April 5, 1891, he had occasion to go to the southern part of the yards for the purpose of ascertaining the numbers of the cars and marking the same. He boarded the switch-engine, which was backing south, pushing three or four cars. There was a foot-board around the tank of the switch-engine, and he took a position on it on the east side of the tank and near the rear end. The engine then proceeded southward, stopping to place some of the cars on different tracks; and when going at about the rate of 10 miles an hour it came in contact with a push-car, which was upon the side of the track, and a portion of which projected over so far that it caught Slattery's foot and injured it so that amputation of a portion of it was necessary. The push-car had been left in the yards two days before, and carried a safe distance from the track, where it was blocked so that it could not run onto the track. On the day of the accident and about 15 minutes before it occurred 6 or 8 boys, ranging from 9 to 13 years of age, who were in no way connected with the Railroad Company, took the car from its position and attempted to put it upon the track; but, being discovered, left it close to the track and ran away. It was an ordinary push-car, without propelling force, with two handles at each end extending out therefrom so that it could be put on and off the track. The engineer saw the push-car a short time before the engine collided with it, but states that he did not observe that it was so close to the track as to be dangerous. At the same time a switchman named Wagner, one of whose duties it was to keep a lookout for obstructions on the track, was standing near the end of the tender. The engineer testified that Slattery and Wagner were between him and the push-car and to some extent obstructed his view. The jury found that the Company was guilty of culpable negligence: "First, leaving push-car unlocked; second, negligence on the part of the engineer in not stopping engine after observing push-car; third, negligence on the part of Mark Wagner in failing to see the push-car in the performance of his duties." The jury returned a verdict in favor of Slattery for $ 3,000; and from the special findings it appears that $ 250 was allowed for the pain suffered, and $ 2,750 was allowed for permanent injuries.

In our view the first ground of negligence is not sustained. The push-car was not in itself a dangerous thing. It was placed at a safe distance from the track and was fastened and blocked in the usual way that such cars are secured. It was a cumbrous, heavy thing, weighing from 500 to 1,000 pounds, not easily moved; and, not having any propelling appliances, children would not naturally be attracted by it any more than they would by a mowing machine a road-wagon or other wheeled implement that a farmer would leave near the roadside without thought of risk or liability. It has never been regarded as necessary to house or lock them up, and the Railroad Company had exercised that degree of care respecting this one that is ordinarily exercised in caring for such cars when not in use. The Company cannot be held responsible for the unlawful acts of third parties in placing obstructions upon its track without...