The Chicago v. Rhoades

• Decision Date: 08 March 1902
• Docket Number: 12,039
• Citation: 68 P. 58,64 Kan. 553
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. LEWIS RHOADES

68 P. 58

64 Kan. 553

THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. LEWIS RHOADES

No. 12,039

Supreme Court of Kansas

March 8, 1902

Decided January, 1902.

Error from court of appeals, northern department; JOHN H. MAHAN ABIJAH WELLS, and SAM'L W. MCELROY, judges.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE -- Requirements of Circumstantial Evidence. So to establish a theory by circumstantial evidence that it may be accepted as a fact proved, the known facts relied on as a basis for the theory must be of such nature and so related to one another that the only reasonable conclusion that may be drawn therefrom is the theory sought to be established.

2. EVIDENCE -- Presumption of Fact Defined -- Erroneous Instruction. The term, "a presumption of fact," has reference to a fact whose existence is established by that just and reasonable inference which common sense and experience naturally draw from another fact known to exist. It must have a fixed fact for its foundation. It cannot be based upon a presumption. Hence, an instruction in the following language: "You are further instructed that it is a presumption of fact that when a mechanical appliance fails to do the work that it is intended to do it is defective or out of repair and that when a mechanical appliance is once shown to be defective or out of repair, it is presumed to remain so, unless it is affirmatively shown that it was repaired," is erroneous, because it bases a presumption of fact upon a presumption, and not upon an established fact.

M. A. Low, and W. F. Evans, for plaintiff in error.

W. G. Bissell, for defendant in error.

POLLOCK, J. DOSTER, C. J., JOHNSTON, ELLIS, JJ., concurring.

OPINION

POLLOCK, J.:

This was an action by Lewis Rhoades against the Chicago, Rock Island & Pacific Railway Company to recover for personal injuries received by him on April 9, 1898, while in the employ of the company, acting in the capacity of "hostler" at Phillipsburg, a division point on defendant's line of railway. It appears from the record that plaintiff had been there engaged as "hostler" or "hostler's helper" for a period of about four years prior to his injury; that it is the duty of the "hostler" and his helper, when an engine comes in off the road, to receive it from the engineer, run it to the water-tank and coal-chute, load the tender with water and coal, run it to the roundhouse, care for it until the time arrives for use again, and run it out preparatory to starting on the trip; that the coal-chute at Phillipsburg had originally been constructed when engines of a smaller type and of not so great height were used; that in more recent years the height of the engines and tenders has been increased, and by reason thereof it became necessary to sink the track alongside the coal-chute a sufficient depth to permit the apron, from which the coal descends from the pocket in which it is contained to the tender, to conduct the coal down from the chute to the tender; that the track alongside the coal-chute at Phillipsburg was sunk a depth of about ten inches, leaving an incline from some distance beyond each end of the coal-chute towards its center; that on the night in question engine No. 897, a large one used in drawing a passenger-train between Phillipsburg and Fairbury, Neb., came in, and plaintiff and his helper ran it to the chute to equip it with coal; that the engine was stopped on the incline opposite pocket No. 2 and the apron was drawn down upon the tender by the helper, but the height of the tender was such that it did not allow the apron to descend to such an angle as automatically to unfasten the door holding the coal in the pocket; that plaintiff started, as he was accustomed to do, to climb up between the cab of the engine and the lowered apron of the chute to unlatch the door holding the coal in the pocket, when, the air-brakes on the engine failing to hold the engine and tender in position, it backed down the incline, catching plaintiff between the cab of the engine and the apron, causing him serious personal injury.

The acts of negligence alleged against defendant by plaintiff consisted of the manner in which the track was lowered, leaving an incline on which it was difficult to hold an engine while being provided with coal; the defective construction and working of the door and apron on the coal-chute, and the use and loading of an engine of such height that the apron would not drop sufficiently to cause the unlatching of the door holding the coal automatically, as was intended by its construction, which required plaintiff to climb up and unfasten the door with his hand, as he was doing when injured; and, as further alleged, "in permitting to come to plaintiff's hands for coaling a locomotive-engine and tender whose air-brakes were defective and out of repair, the plaintiff not being informed of said fact, but the defendant having notice thereof."

Upon the trial, the evidence showed complete knowledge on the part of plaintiff of all the defects alleged to exist in the construction of the track and in the construction and operation of the apron and door on the coal-chute, and the size and height of the engine in question, etc., were the only questions of negligence submitted to the jury by the court. Plaintiff had verdict and judgment, which judgment was by the court of appeals affirmed, and from the decision and judgment of affirmance the railway company brings error to this court.

A determination of the questions involved in this controversy demands the consideration of the sufficiency of the evidence found in the record to uphold the verdict rendered and the charge of the court to the jury upon this evidence. The record contains no direct evidence tending to show any defect in the construction or condition of the air-brakes on the engine handled. The ultimate fact that the engine backed down the incline and caused the injury to plaintiff complained of is undisputed. Why the engine backed down is attempted to be shown only by inference. It is assumed that the engine moved because the brakes failed to hold. It is further assumed that the brakes failed to hold because of the leakage of air at...