The Atchison v. Taylor

• Decision Date: 08 July 1899
• Docket Number: 11308
• Citation: 57 P. 973,60 Kan. 758
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES S. TAYLOR

57 P. 973

60 Kan. 758

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JAMES S. TAYLOR

No. 11308

Supreme Court of Kansas

July 8, 1899

Decided July, 1899.

Error from Sedgwick district court; D. M. DALE, judge.

Judgment reversed and new trial ordered.

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

Amidon & Conly, for defendant in error.

OPINION

DOSTER, C. J.:

This was an action by James S. Taylor against the Atchison, Topeka & Santa Fe Railway Company to recover damages for bodily injuries negligently inflicted upon him as an employee of the company in the territory of Oklahoma. The plaintiff was a brakeman on one of the defendant's freight-trains. His train was going north, and had stopped at the city of Guthrie to do some switching and other necessary work. A part of the work to be done was the moving of some freight-cars which had been left standing on a side-track before the train upon which plaintiff was employed arrived. The draw-bar at one end of one of these cars had been pulled out so that it could not be coupled in the ordinary way. It was fastened to another car by means of a chain which, as arranged, had more "slack" or a greater length than should have been allowed to it. The plaintiff did not observe the condition of this car nor the fact that it had been fastened to the other by means of the chain. In the performance of his duties he was riding upon the top of this car as it was pushed by the engine. The engineer stopped quite suddenly. The slack of the chain before mentioned ran out to its full length. This at once arrested the motion of the car, causing it to rebound in the opposite direction. This unexpected occurrence threw the plaintiff off his balance and against another car, causing the injuries of which he complains.

The negligence charged in the petition was that of the enginemen in stopping the engine and attached cars with unnecessary suddenness. The case, however, was not tried upon the theory of their negligence, but was tried upon the theory of the negligence, of the railroad company as master for allowing the broken car to stand upon the side-track without repair and without warning to the plaintiff of its dangerous condition. Counsel for both parties admit in their briefs that the case was tried on this theory and such is also manifest from the record. We shall, therefore, pay no attention to the variance between the plaintiff's petition and his evidence.

The jury found a verdict in the plaintiff's favor and in addition thereto made special findings of fact, one of which was that the common-law liability of the master for injuries received by a servant in his employ alone obtained in Oklahoma; that is, the statutes of that territory give no right of action to an employee for injuries negligently inflicted upon him by a coemployee or fellow-servant. The jury also found that the enginemen were not guilty of negligence in suddenly stopping the engine, so that, even if they were to be regarded in law as vice-principals, or in other words as the master, no recovery could be had because of their conduct. They also found that "the car in question had been out of repair long enough, under the rules of the company, for the servant of the road whose duty it was to see to repairs, by the exercise of ordinary care, to have had the car repaired," but another finding stated that there was no evidence as to how long the car in question had been out of repair. This last-mentioned finding was in conformity to the truth. There was no evidence as to the time when the draw-bar pulled out; no evidence as to the time when it had been chained to the other car; no evidence as to when it had been set on the side-track at Guthrie, and no evidence as to how long it had remained there. Nor was there any evidence as to the existence of any rules of the company requiring its servants or employees to observe and report the damaged condition of cars from which a presumption of previous knowledge by the superior employees of the company could be drawn. At the time of the trial, but not at the time of the accident, the company had a rule upon the subject. The jury also found that at the time of the accident it was the duty of conductors to see that cars broken as the one in question was were properly chained for the purpose of switching in the yards. The jury also specially found as follows:

"Q. 11. Were any servants or agents of the defendant company guilty of negligence directly contributing to plaintiff's injury? A. Yes.

"Q. 12. If you answer the last question 'yes,' state what was the official position of said servants or agents of defendant company. A. Conductor."

"Q 36. Was not the plaintiff, and all other brake-men and conductors on the division, hired, among other things, for the purpose of chaining up and bringing to a place where they could be repaired cars in which the coupling apparatus had become so defective that they could not be repaired by the train crew? A. Yes.

"Q. 37. Was the draw-bar in question so out of repair that it could not ordinarily be repaired by the train crew of which the plaintiff was a member? A. Yes.

"Q 38. If you answer the last...