The Missouri Pacific Railroad Company v. Nellie

• Decision Date: 07 July 1904
• Docket Number: 13,761
• Parties: THE MISSOURI PACIFIC RAILROAD COMPANY v. NELLIE, JOHNSON
• Court: Kansas Supreme Court

77 P. 576

69 Kan. 721

THE MISSOURI PACIFIC RAILROAD COMPANY v. NELLIE, JOHNSON

No. 13,761

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Error from Anderson district court; C. A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury to Employee -- Question for Jury. Whether an engineer who, while he was under his engine looking for a hot box, was killed by the impact of some cars which had been kicked up a grade and then had rolled back against his engine, was guilty of contributory negligence, barring a recovery, by placing himself in a position of danger at the time and place and under the circumstances, was a question for the jury.

2. NEGLIGENCE -- Not Necessary to Be on Guard at All Times. Negligence is not imputable to a person for failing to guard against accident when, under the circumstances, he had no reason to apprehend danger.

Waggener Doster & Orr, for plaintiff in error.

C. W. Trickett, and J. P. Trickett, for defendant in error.

ATKINSON J. All the Justices concurring.

OPINION

ATKINSON, J.:

On the night of December 27, 1900, W. E. Johnson, an employee of the Missouri Pacific Railway Company, was killed in the switch-yards at Coffeyville, Kan., while in the discharge of his duties as engineer of a switch-engine. He left a widow and one child, and the widow brought this action to recover damages, charging that his death was the result of negligence of the railway company. She had verdict and judgment for the sum of $ 7000, and the company brings error.

In the city of Coffeyville are two switch-yards, one known as the Missouri Pacific yards, the other as the Iron Mountain yards, both operated by the plaintiff in error. They are connected at the west end by a Y, and the portion of this Y which leads from the main track southeast into the Iron Mountain yards forms a very perceptible grade, dipping to the westward. Johnson was killed at about the hour of 10: 30 P. M. The night was dark, cold, and windy, and he was a new man in the yards, having operated the switch-engine there the two preceding nights only. The local freight from Osawatomie had just pulled into the yards. By direction of the foreman of the switching crew, the switch-engine operated by Johnson moved forward and was coupled to the rear end of the caboose of this train, consisting of twenty-seven cars. This string of cars which had formed the local freight was then backed westward over the main line until it passed the switch opening onto the Y leading to the Iron Mountain yards. The switch having been lined, a signal was given to Johnson to move forward, it being given in a manner to indicate that cars would be cut off. Johnson moved the engine forward, pushing the string of cars onto the Y and up the grade. As this was being done the east twelve cars were cut off, and the signal was given to Johnson to stop and back with the remaining fifteen cars attached to the engine. It was left to McElrath, a member of the switching crew, to follow up and stop the cut of twelve cars and prevent their rolling back down the grade. When the signal was given Johnson did not immediately stop the engine and attached cars, and did not back. He said to his fireman, Zubar: "I smell waste burning; I believe the right back-driver box is on fire." He lighted a torch and got down from the engine with it in his hand. After walking about the engine he stooped down, holding the torch in his left hand, resting his right upon the rail, and looked up under the engine. While in this position the twelve cars which had been cut off and left to move up the grade in charge of McElrath, rolled back down the grade, colliding with the cars attached to the engine, and causing it to move backward and over Johnson, killing him instantly.

The second amended petition contained two causes of action -- the first charging a liability for negligence under the common law, and the second, under the statute. When plaintiff rested her case, defendant interposed a demurrer to the evidence in support of each of the causes of action, and also moved that plaintiff be required to elect upon which cause of action she would rely for a recovery. The court overruled the demurrers, and withdrew from the consideration of the jury all charges of negligence except the one charging negligence to McElrath on account of his failure to prevent the cut of twelve cars from rolling back down the grade, colliding with the standing cars, and causing the death of Johnson.

Defendant denied negligence on the part of McElrath, and charged negligence to Johnson contributing to, and causing, his death. It was averred by it that the accident was caused by Johnson's negligence in the following particulars: (1) In not obeying the signals given him to stop and back; (2) in stopping the engine with fifteen cars on the grade, he at the time knowing the danger of the cut-off cars' running back against them; (3) in going under the engine at the time and under the circumstances then existing without giving notice or warning that he was about to do so; (4) in voluntarily and unnecessarily selecting a dangerous and unsafe way to do what he did, when there was a better and safer way which might have been selected. It was further averred that Johnson had a full knowledge of all the conditions surrounding the business in which he was then engaged and the means of acquiring information of all the dangers and risks incident thereto, and that he assumed the risks and hazards as a part of his duties without objection or protest. The foregoing specifications of negligence were also urged as grounds upon which the court should have sustained defendant's demurrers to plaintiff's evidence, the overruling of which is assigned as error.

The switching crew with Johnson was composed of Wilson, the foreman of the crew, whose duty it was to lay out and direct the work; Murphy, one of the helpers, whose duty it was to cut off cars and throw switches; McElrath, also one of the helpers, the fieldman, whose duty it was to look out after catch and stop cuts of cars; and Zubar, the fireman. Wilson and Murphy testified that signals to stop and to back were given to Johnson by means of a lantern at or about the time the twelve cars were cut off; that the signals were not answered or acted upon by him. There was no evidence to show that he saw or understood the signals given. There was testimony tending to show that Johnson, from his position on the engine, could not have seen the signals; and there was testimony tending to show that...