The Missouri Pacific Railway Company v. Bentley

• Citation: 78 Kan. 221,93 P. 150
• Decision Date: 07 December 1907
• Docket Number: 15,263
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. PAULINA BENTLEY
• Court: United States State Supreme Court of Kansas

93 P. 150

78 Kan. 221

THE MISSOURI PACIFIC RAILWAY COMPANY v. PAULINA BENTLEY

No. 15,263

Supreme Court of Kansas

December 7, 1907

Decided January, 1908.

Error from Sumner district court; CARROLL L. SWARTS, judge. First

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEMURRER -- Evidence -- Immaterial Error. Error in overruling a demurrer to evidence is of no avail where the defendant, instead of standing upon the demurrer, offers proof which supplies the deficiencies of plaintiff's evidence.

2. PERSONAL INJURIES--Employee--Contributory Negligence--Question for the Jury. A track-repairer who omits to look and listen for approaching trains while engaged in the line of his duty at work on the track is not necessarily guilty of contributory negligence as a matter of law; whether such omission constitutes negligence is ordinarily for the jury to determine, under all the circumstances.

3. PERSONAL INJURIES--"Last Clear Chance" -- Instructions -- Immaterial Error. In an action for damages for the death of a railroad employee who was run over by an engine while at work on the track, where there is no evidence to show whether he looked and listened, an instruction that if the employees in charge of the engine could by the exercise of reasonable diligence have seen the deceased on the track in sufficient time to stop the engine and thus avoid the injury, plaintiff would be entitled to recover, notwithstanding the deceased was negligent in failing to see the approach of the engine, is erroneous. In view of the other instructions as to contributory negligence, and the special findings of the jury, the giving of such an instruction in this case is held not to have been prejudicial error. Contributory negligence must fail unless established by defendant's own testimony is erroneous. An instruction open to this objection held not prejudicial for reasons stated in the opinion.

J. H. Richards, and C. E. Benton, for plaintiff in error; C. E. Elliott, of counsel.

W. T. McBride, and Ivan D. Rogers, for defendant in error.

OPINION

PORTER, J.:

Plaintiff recovered judgment for the death of her husband, who was an employee of the railway company. Defendant brings error.

On January 28, 1904, Robert T. Bentley, a track-repairer, was run over and killed by an engine and tender in the yards of the company at Conway Springs. At the time of the accident the railway company maintained at Conway Springs a roundhouse, situated on a swit leading to the main track, and on the main track a coal-chute and storage bins, where engines were supplied with coal. The chute was a high, covered structure, having a track extending through the center, and was equipped with pockets in which various amounts of coal were placed for the purpose of dumping the same into the tenders of engines when needed. The main track extended east and west, and the chute was on the north side of this track. The switch leading to the roundhouse joined the main track at a point 750 feet west of the place where the deceased was struck, which was on the main track, near the coal-chute. For 600 feet west of this place the track was straight, thence curving slightly to the north. It was the custom each morning, at about eight o'clock, for an engine to leave the roundhouse, enter the main track at the switch, and go to the chute for coal. After entering the main track the whistle would be sounded, the number of blasts indicating to the men at the chute the number of tons of coal required. Thereupon one of the men in charge at the chute would quit his work and descend by a stairway from the chute and take a position in front of the pocket containing the required amount of coal.

The morning of the accident was cold, with a strong wind blowing from the northwest. The engine left the roundhouse in charge of the roundhouse foreman and a hostler's helper. After entering the main line it started east, and four blasts of the whistle were sounded as a signal for the amount of coal required. Steam was cut off and the engine was running at four to five miles an hour. The track was slightly down grade to the place where the accident occurred.

The deceased had been at work that morning with other employees at a point near where he was struck. The foreman was not with them at that time. There was some difficulty found in tightening one of the bolts, and they left this place and were all at work on the track about 250 feet west of the chute when the foreman returned. The deceased took the foreman back to the former place to show him where the trouble was, and the testimony of the foreman, who was a witness for defendant, is that after examining the bolt he directed the deceased to go to the hand-car, which stood 165 feet east, and get a track chisel. This was two minutes before the accident. After giving the order he turned and left deceased there, and never saw him again alive. The foreman was walking along the track 250 feet west of where he left the deceased when the engine passed him going for coal. The testimony showed that the track chisel had not been taken from the hand-car. The track wrench with which deceased had been at work was found lying north of the rail near the place where the bolt was out, and some spots of blood were found on the north rail a few feet east of the same place. The deceased was not seen by any one until his body was discovered under the engine by the man who had left the coal-chute upon hearing the signal for coal and who had come down to the ground and taken a position at one of the coal-pockets.

It is contended that the evidence failed to show that deceased was at work on the track at the time he was struck; that the inference from plaintiff's testimony is that deceased was either walking upon or stepped upon the track directly in front of the approaching engine, and was therefore guilty of contributory negligence. It is argued on these grounds that the court should have sustained a demurrer to the evidence. We think there was sufficient evidence to warrant the court in submitting to the jury the question whether the deceased was at work on the track, and also whether there was contributory negligence. Defendant not only failed to stand upon the demurrer, but offered proof showing that the deceased had been at work at this place on the track within two minutes of the time he was struck, and that he was specially interested in tightening the bolt there. It was conceded in the brief that defendant's testimony "served to clear up some of the circumstances surrounding the accident." As the situation of the deceased could only be shown by circumstantial evidence, we think defendant supplied any deficiency there might have been in plaintiff's proof and it is not in a position to claim that there was error in overruling the demurrer. (Pine v. Bank, 63 Kan. 462, 465, 65 P. 690; Woodmen Circle v. Stretton, 68 Kan. 403, 75 P. 472.)

In answer to special questions the jury found that the engine was running at from four to five miles an hour; that no other signal was given except the signal for coal, which was sounded from 550 to 750 feet west of the place of the accident; that the employees in charge of the engine failed to keep a lookout, and never saw deceased; that he had not gone after the chisel but was at work on the track at a point about forty feet west of the coal-chute, and was prevented from hearing the approach of the engine by the wind blowing about the coal-bins and chute. We are asked to say that as a matter of law the deceased was guilty of contributory negligence. This we can not do. The evidence though circumstantial, supports the finding of the jury that he was at work on the track in the discharge of his duty. True, his position was one of danger, but whether he was negligent in failing to take such precautions as would warn him of the approach of the engine was a question for the jury to determine, under the circumstances in evidence. ( Comstock v. U. P. Rly. Co., 56 Kan. 228, 42 P. 724.) The same degree of diligence is not required of one whose duty compels his presence upon the track as is required from a traveler about to cross. (Ominger v. N. Y. Cen. & Hudson R. R. Co., 11 Hun 159; Goodfellow v. Boston, Hartford & Erie Railroad Company, 106 Mass. 461; Baltimore, etc., R. Co. v. Peterson, Adm., 156 Ind. 364, 59 N.E. 1044; McMarshall v. The Chicago, R. I. & P. Ry. Co., 80 Iowa 757, 45 N.W. 1065, 20 Am. St. Rep. 445; Jordan v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 8, 59 N.W. 633, 49 Am. St. Rep. 486; Noonan v. New...