The Atchison v. Wells

• Decision Date: 07 December 1895
• Docket Number: 7852
• Citation: 42 P. 699,56 Kan. 222
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LUCINDA WELLS

42 P. 699

56 Kan. 222

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LUCINDA WELLS

No. 7852

Supreme Court of Kansas

December 7, 1895

Decided July, 1895.

Error from Butler District Court.

ACTION by Lucinda Wells against The Atchison, Topeka & Santa Fe Railroad Company. Judgment for plaintiff, and defendant brings the case to this court. The opinion herein, filed December 7, 1895, states the material facts.

Judgment reversed and case remanded.

A. A Hurd, and Redden & Schumacher, for plaintiff in error.

Aikman & Brooks, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

William M. Wells was a brakeman who had been in the service of the Atchison, Topeka & Santa Fe Railroad Company for about 18 months prior to April 15, 1890, part of the time on passenger-trains, but most of the time on freight-trains. He had been at work with the conductor and crew with whom he was associated on the date named for about three months before that time. About 10 o'clock on the night of April 15, 1890, the conductor and his crew took charge of a freight-train at Emporia and started with it for Nickerson, Wells going with them and acting as rear brakeman on the train. The train consisted of about 30 empty freight-cars, a stock-car, a flat car loaded with telegraph-poles, and this was followed by the caboose. The telegraph-poles on the flat car were negligently loaded, and projected over the end of the flat car, so that one of them reached within four inches of the stock-car in front of it. The bottom of the flat car was from 3 feet and 10 inches to 4 feet above the ground, and the projecting poles were about two feet above the bottom of the car. No stop was made by the train until it reached Strong City, but there was no switching done there, nor does it appear that the attention of Wells was drawn to the car loaded with telegraph-poles. The next stop was made at Florence, where they arrived after midnight. There the train was uncoupled from the front end of the flat car by Wells, and about 10 minutes later the train was backed up toward the caboose and flat car, and Wells was directed by the conductor to make a coupling. Following the direction of the conductor, he went in, leaned over, and attempted to make the coupling, and, as he retired and raised up, his head was caught between one of the projecting telegraph-poles and the stock-car, so that his head was crushed and his life taken. An action was brought to recover for the loss by his surviving widow, Lucinda Wells, who was the only heir at law of the deceased, and she recovered a judgment for $ 4,750.

It is insisted under the facts that Wells knew the flat car to which he was about to couple the train was loaded with poles, and that he knew, or must have known, of the condition of the car prior to the accident, and therefore that he was guilty of culpable negligence in attempting to couple them in that condition. It is argued that the case comes fairly within the rule of. A. T. & S. F. Rld. Co. v. Plunkett, 25 Kan. 188, and that the demurrer to the evidence filed by the company should have been sustained.

The facts in the two cases respecting the knowledge or negligence of the injured persons differ in several material respects. In the Plunkett case the injury occurred in daylight, and it was admitted that he knew the condition of the weather, of the ground, and of the track, as well as any other employee of the company knew the same, and it being broad daylight and no obstruction to his vision, it was held that he must have known of the dangers which might arise from the projecting timbers. In the present case it does not appear that the attention of Wells was called to the condition of the car at Emporia, nor at any other point on the road, until they had reached the place where the accident occurred. It was a dark rainy night, and, while Wells had a lantern with him, it could hardly be said that his attention was called to the dangerous manner in which the car was loaded. Some of the poles projected over the end of the car much further than others, and we cannot say, as a matter of law, from the evidence, that those which projected furthest, and with one of which his head came in contact, were within his line of vision when he looked in with a view of entering to make the...