The Atchison v. Winston

• Decision Date: 08 February 1896
• Docket Number: 8093
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LUCIUS WINSTON, as Administrator of the Estate of Sivvie Ayres, widow of Albert Alvin Ayres, deceased

43 P. 777

56 Kan. 456

THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY v. LUCIUS WINSTON, as Administrator of the Estate of Sivvie Ayres, widow of Albert Alvin Ayres, deceased

No. 8093

Supreme Court of Kansas

February 8, 1896

Decided January, 1896.

Error from Osage District Court.

ACTION by Lucius Winston, as administrator of the estate of Sivvie Ayres, widow of Albert Alvin Ayres, deceased, against The Atchison, Topeka & Santa Fe Railroad Company, to recover damages for death by wrongful act. Judgment was rendered for plaintiff, and defendant brings the case to this court. The opinion was filed February 8, 1896.

Judgment reversed.

A. A Hurd, and C. N. Sterry, for plaintiff in error.

Waters & Waters, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On April 6, 1891, Albert A. Ayres was engaged as a switchman in the yards of the Atchison, Topeka & Santa Fe Railroad Company at Nickerson, Kan., and had been acting in that capacity for about three months prior to that time. Two crews of men were engaged in the yards, each consisting of three men, viz., a yardmaster and two switchmen. Ayres belonged to the night crew, of which Frank Low was yardmaster; Logan Lawson pulled the pins between the cars and between the engine and the cars, while Ayres generally caught cars which were cut off from others, and moved to different parts of the yards, but occasionally he was required to uncouple cars and to pull pins. On the night of April 6, 1891, which was dark and windy, the crew were engaged in making up a train, and it became necessary to set 18 cars which were upon one track over upon another. The switch-engine was backed down to connect with them, and Lawson, whose duty it was to pull pins and direct the movements of the engine, stood on the running-board attached to the tender. That end of the engine was attached to what is called a "Mexican" car, which had a pin in the drawhead that could not be taken entirely out. There was a slot in the pin through which a rivet passed, and the pin was so made that when it was drawn up as far as the rivet would permit it to go, the head of it dropped back, and the slot would catch in the drawbar and hold the pin in position. Quite a number of cars with such couplings were used on that railroad system, but the pins so placed would not always stay up. Occasionally, when passing over a switch or anything which would cause a jolt, they would fall back again. The cars were pulled out from one track and were being backed in upon another at a rate of from three to five miles an hour, and Low and Ayres had climbed upon the other end of the train with a view of setting the brakes and stopping the cars when they reached a certain point. When they had proceeded a short distance, and it was desired to cut the engine off, Lawson, standing on the footboard of the tender, with his lantern in one hand, pulled the pin of the Mexican car, and set it back, and at once turned to catch the handhold of the tender with one hand, and signal the engineer with his lantern with the other to stop the engine. Upon this signal, the engineer stopped the engine, but the pin had fallen back, and recoupled the engine to the Mexican car, which caused a jerk throughout the entire train of 18 cars. Just before this occurred, Ayres had climbed upon the train and was over near the end of the eighteenth car, while Low had climbed on the seventeenth car, but had not reached the top. When Low felt the jerk, he looked back and saw Ayres's lantern falling, but he was unable to see whether Ayres had fallen, or what had...