The Atchison v. Swarts

• Decision Date: 08 May 1897
• Docket Number: 9847
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. GEORGE H. SWARTS

48 P. 953

58 Kan. 235

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. GEORGE H. SWARTS

No. 9847

Supreme Court of Kansas

May 8, 1897

Decided January, 1897.

Error from Butler District Court. Hon. C. W. Shinn, Judge.

Judgment reversed.

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

Waters & Waters and Smith & Rees, for defendant in error.

DOSTER C. J. JOHNSTON and ALLEN, J. J., concurring. DOSTER, C. J dissenting from the second and third paragraphs of the syllabus and the corresponding portions of the opinion.

OPINION

DOSTER, C. J.

The defendant in error was a switchman and yard brakeman in the yards of the plaintiff in error at Winfield, Kansas, and had his left hand injured while endeavoring to effect a coupling between cars in the yards. He sued for damages for such injury, upon the ground of the Company's negligence in the maintenance of its switch tracks at the point where the accident occurred. He was the only witness in his own behalf. Upon the vital points in controversy, the Company opposed to him seven of its other employees. His testimony was to the effect that he was an experienced switchman and brakeman, having been engaged as such eight or nine years, and that he had been at work in the yards at Winfield eight or ten days before being injured. In the early morning, while it was yet dark enough to require the aid of a lantern, he endeavored to make a coupling between cars, and to do so stepped across the rail and into a hole between two ties. To quote his testimony:

"As I reached in to take the link on the still car, my foot slipped in a hole like, and I went down. I threw my hand up like, and I had my eye glanced down, and there saw the hole; and just at that point there came a general surge; they went right on, and as I straightened myself up I found that I was fast. Had not done switching on that track in daylight. The hole was like two ties as generally laid--there was no dirt, as I discovered, between them. The hole was from four to six inches deep and extended clear across the track. The distance between the ties, at the place where I got hurt, and the hole where I got hurt, was about eighteen inches. It extended clear across the track, and was from four to six inches deep."

The testimony of all the Company's witnesses was to the effect that there was no hole between the ties at the place where the injury occurred, and that most of the width of the track between rails was "surfaced up" even with the ties, with the dirt sloping down under the rails toward the ends of the ties. One witness said: "The track there was like any ordinary main line; it was surfaced up in the middle and sloped off." Another said: "The track was in first-class condition as a mud road, laid with old iron. Good first-class side-track in good condition." Two of the Company's witnesses testified to declarations made by the plaintiff a few minutes after the accident, contradictory of his testimony as to the fault of the Company in causing it. It was also shown that defendant in error, in applying for payment of an accident insurance policy on account of his injury, stated as the cause of the same: "I was coupling cars, and slipped over a tie as I stepped in to take hold of link to make coupling, and caught my hand between the draw-bars."

One of the witnesses for plaintiff in error testified: "The ordinary duties of a switchman going into a strange yard, would be to inform himself of the condition of the yard." Another of the witnesses testified: "There was nothing to prevent the plaintiff seeing and knowing the condition of these tracks if he would look at them; he had the means and time to inform himself concerning the condition of the track there. It was his duty as a switchman to look at the tracks in doing his work." Another of its witnesses testified: "I had charge of the track department. My duties with reference to the track were to examine it and see if any repairs were necessary, and to have it done; to keep the track in good, safe running order for trains, and if there were any defects to have them remedied. I looked the tracks over sometimes twice a day, sometimes once a day, different times; sometimes once a month, sometimes not so often."

The principal issues of law in the case arise upon the foregoing summary of evidence and upon certain special findings of the jury. The verdict and judgment were for the plaintiff below; to reverse which judgment this proceeding in error is brought.

It is strenuously contended that the general verdict of the jury, and their special finding that there was a hole in the switch-track which caused the injury to the plaintiff, are against the evidence, and that we should so declare as matter of law; and many cases are cited in support of this contention, some of which would seem to lend countenance to the views of the plaintiff in error. Kaare v. T. S. & I. Co. (139 N.Y. 369, 34 N.E. 901) is cited as directly in point. It was there held: "Where there is a vast preponderance of evidence in favor of defendant, whose witnesses are apparently entitled to credit, while plaintiff's case stands on his own evidence but slightly supported, the refusal to defendant of a new trial is subject to review by the General Term." The opposite rule has, however, too long prevailed in this State, and is supported by reasons too satisfactory, to justify departure therefrom. We cannot usurp the province of the jury and the trial judge, who saw and heard the witnesses testify. Where there is direct and positive testimony by a single witness, even though an interested one, who stands unimpeached except in the sense of being contradicted, it must prevail in this court, even though opposed by the testimony of many others, where, as in this case, it has been approved by both jury and judge below as more credible than the testimony of the many in opposition.

It is claimed that the evidence in the case failed to establish negligence upon the part of the Railroad Company, and also that, by two special findings of the jury, it was acquitted of negligence. These findings are as follows:

"Ques. Did it not (referring to the hole), by its appearance, indicate that it had been in that condition for a considerable time? Ans. We cannot determine how long.

"Q. Did defendant have any knowledge of defect in the track or hole, if any there was, at the time of the accident? A. We do not know."

These answers, under former decisions construing others of a like kind, are to be taken as negativing the existence of the facts necessary to charge the Company with liability; and are therefore equal in effect to an affirmative finding that the Company had no knowledge of the hole in its track, and also that such hole had not been there for such length of time as to charge the company with negligence in allowing the same. Morrow v. Comm'rs of Saline Co. (21 Kan. 484), A. T. & S. F. Rld. Co. v. McCandliss (33 id. 366), and K. P. Rly. Co. v. Peavy (34 id. 472), support this construction of these questions and answers. In the case first cited, it is said:

"Where to a question the jury respond, 'We don't know,' or in any like manner, such an answer is tantamount to a simple denial; for, if from the testimony the jury do not know whether an alleged fact exists, it follows that the testimony does not show that it exists; and therefore for the purposes of the case it does not exist. Such an answer operates against the party whose case needs the support of the alleged fact."

The jury having thus found, in legal effect, that the Company had no actual knowledge of the existence of the hole in its track which brought about the plaintiff's injury, and having also found, in legal effect, that such hole had not existed for such length of time as to charge the Company with knowledge of its existence, the plaintiff's case, under the numerous decisions of this court, must fail. The rule is unquestioned, that, in order to charge a master with the consequences of an injury resulting to a servant from the use of defective machinery or other appliances with which the servant is at work, it must appear that the master knew of the defective character of such machinery or appliances, or that, in the exercise of reasonable or ordinary care and diligence, he ought to have known of the same. Caruthers v. C. R. I. P. Rly. Co., 55 Kan. 600; Harter v. A. T. & S. F. Rld. Co., 55 id. 250; A. T. & S. F. Rld. Co. v. Ledbetter, 34 id. 326; A. T. & S. F. Rld. Co. v. Wagner, 33 id. 660.

In A. T. & S. F. Rld. Co. v. Tindall (57 Kan. 719) the doctrine was again declared by all the justices. Its application to the particular facts of that case was, however, denied by the writer of this opinion; and its application to the facts of this case is likewise denied by him. His dissent in A. T. & S. F. Rld. Co. v. Tindall, supra, was based upon the fact that the defective track causing the injury existed in the Company's yards -- a place constantly and directly under the eye and supervision of the Company's managing agents; and, as might have been said in that case, and as...