Decided
July, 1886
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Error
from Wyandotte District Court.
ON June
30, 1883, John T. Dwyer filed the following petition in the
district court of Wyandotte county against The Missouri
Pacific Railway Company:
"Plaintiff
for his cause of action states that the defendant is, and was
at the date hereinafter mentioned, a railroad corporation
operating, running and maintaining a railroad, and doing
business in the state of Kansas from the state line between
Missouri and Kansas, at the Missouri river, to Atchison, in
said state of Kansas -- its said railroad passing and being
operated in and through the county of Wyandotte, in said
state of Kansas; that on the 11th day of December, 1882
plaintiff was in the employ of defendant as a brakeman on its
said railroad; that it was defendant's duty then and
there to furnish plaintiff with suitable cars, machinery and
appliances upon and by means of which, as such employe, he
might safely discharge his duties by the use of ordinary care
and prudence; that on said date defendant, disregarding its
duty, negligently and carelessly placed in the train on which
plaintiff was engaged to perform services as such brakeman, a
car having an insecure, unsafe and defective brake-staff, in
this -- that said brake-staff was cracked and broken, all of
which facts were known, or by the use of ordinary care and
prudence might have been known, to defendant, and were
unknown to plaintiff; that plaintiff, while at the place on
said car which his duty as such employe required him to be,
on the night of said December 11th, near Pomeroy, a station
on defendant's said railroad, and while then and there in
the careful performance of his duty in attempting to set the
brake having said defective, insecure and unsafe brake-staff,
said brake-staff broke and separated, precipitating the
plaintiff violently to and upon the track of said railroad,
the trucks of one of the cars passing over his right leg,
then and there breaking, crushing and mangling it to such an
extent as to render its amputation necessary to save his
life, which was done; that plaintiff has suffered and still
suffers great pain, and is permanently disabled by reason of
said injury.
"Wherefore,
plaintiff says he is damaged in the sum of twenty-five
thousand dollars, for which sum and costs he demands
judgment."
On
November 26, 1884, the defendant filed the following amended
answer:
"Now
comes said defendant, and for its amended answer to the
petition of plaintiff filed herein, says:
"1.
It denies each and every allegation, statement and averment
in said petition contained not hereinafter expressly admitted
and confessed.
"2.
For further answer this defendant says, that if the said
plaintiff sustained any injury, as alleged in his said
petition, such injury was the result wholly of his own
carelessness and negligence, and his failure to exercise
reasonable and ordinary care and prudence under the
circumstances, and not by reason of any negligence on the
part of said defendant, or any of its servants, agents or
employes other than the said plaintiff; that the failure of
the said plaintiff at the time and under the circumstances to
exercise reasonable, ordinary and proper care, was the sole
cause of all injury by him at the time sustained.
"3.
Defendant further says, that said car from which it is
alleged that said John T. Dwyer, the plaintiff, was thrown at
the time he received the injuries complained of, did not
belong to this defendant company, but was a foreign car, and
had only been received by this defendant for the purpose of
transporting the contents thereof, and that the defect, if
any, in said car, was a latent defect and not susceptible of
ascertainment by the exercise of reasonable and ordinary
care, and was not a defect known to the said defendant or any
of its officers, agents or employes other than the plaintiff,
and could not have been discovered by the exercise of
reasonable and ordinary care; and that on said 11th day of
December, 1882, and prior and subsequent thereto, this
defendant had in its employ competent and careful inspectors
of cars, stationed at the state line, near Kansas City,
Missouri, and if there was any defect in said car which
resulted in the injury to the plaintiff complained of, such
defect was a latent one and could not by said inspectors have
been discovered by the exercise of reasonable and ordinary
care and diligence; that said defendant used reasonable and
proper care in having all cars by it received from other
companies -- as well as its own cars -- inspected at all
proper hours, and used all reasonable and proper diligence in
having the said car, in plaintiff's petition alleged to
have been defective, inspected, and the same was in a proper
and safe condition for all purposes for which the same was
being used at the time of such injury.
"Wherefore,
defendant prays judgment for costs of suit."
On
December 2, 1884, the plaintiff filed his reply, as follows:
"Now
comes the above-named plaintiff, and for reply to the amended
answer of the defendant filed herein, says he denies each and
every allegation and averment therein contained inconsistent
with the averments of his petition, and prays judgment as in
his petition prayed."
Trial
at the December Term, 1884. The jury returned a verdict for
plaintiff, and assessed his damages at the sum of ten
thousand dollars. The jury also answered the following
particular questions of fact submitted by the plaintiff:
"1.
Was the plaintiff injured on the 11th day of December, 1882,
on the line of the Missouri Pacific railroad in Kansas? A.
Yes.
"2.
Was said injury caused by a defective brake-staff on one of
the defendant's cars in Kansas on its road? A. Yes.
"3.
Was that defect such an one as was known to the defendant, or
could have been known by the exercise of ordinary care? A.
Yes.
"4.
Did the plaintiff, by any neglect or fault of his, contribute
to the injury? A. No.
"5.
Was the plaintiff at the time of the injury in the usual,
proper and careful discharge of his duty? A. Yes."
And the
jury also answered the following particular questions of fact
submitted by the defendant:
"1.
On December 11, 1882, was the plaintiff injured by reason of
falling from car of defendant, marked M. K. & T. coal car
No. 4657? A. Yes.
"2.
Was said fall of plaintiff occasioned by the breaking of the
brake-staff on said car just below the ratchet-wheel of said
brake? A. Yes.
"3.
Was said car No. 4657 rebuilt at Sedalia, Mo., in April
1880? A. Generally rebuilt.
"4.
When said car had been so rebuilt in April, 1880, was it then
in apparent good order and proper condition? A. Yes.
"5.
Was it thereafter used by the defendant in the prosecution of
its business? A. Yes.
"6.
On September 13, 1882, was said car repaired at the shop of
the defendant at Atchison, Kansas? A. Yes.
"7.
If question 6 is answered 'Yes,' state in what
respect the same was so repaired at Atchison, Kansas, on
September 13, 1882. A. By increasing the box or bed of the
car from 16 to 24 inches in depth.
"8.
After being so repaired in Atchison on September 13, 1882,
was said car in proper condition and in good repair so far as
the use of reasonable and ordinary care could discover? A. No
evidence in regard to the condition of the brake.
"9.
If question 8 is answered 'No,' state in what respect
said car was not in proper condition after being so repaired
at Atchison, Kansas, September 13, 1882. A. Same as No. 8.
"10.
If question 9 is answered by stating that said car was not in
proper condition after being so repaired September 13, 1882,
state if such improper condition was known to any employe of
the defendant company. A. No evidence to the jury.
"11.
If question 10 is answered 'Yes,' give name of such
employe who had such notice. A. No answer.
"12.
On December 10th and 11th, 1882, was said car No. 4657 loaded
with coal at Rich Hill, Mo., which coal was to be delivered
at Leavenworth, Kansas? A. Yes.
"13.
Did said defendant then have in its employ at Rich Hill,
Missouri, careful and competent car inspectors? A. No.
"14.
Was it the custom of said inspectors to inspect all cars of
defendant taken in train at said station? A. Yes.
"15.
Did said car 4657 on its way to Leavenworth, Kansas, with
said coal, pass through Pleasant Hill, Missouri? A. Yes.
"16.
At said Pleasant Hill, Missouri, did defendant have in its
employ careful and competent car inspectors? A. If so, they
failed to perform their duty.
"17.
Was it the custom of said inspectors to inspect all cars of
defendant which passed through said Pleasant Hill, Missouri?
A. Yes.
"18.
On its way to Leavenworth, Kansas, on December 11, 1882, did
said car pass through Kansas City, Missouri? A. Yes.
"19.
At Kansas City, Missouri, did defendant at said time have in
its employ careful and competent inspectors of cars? A. No.
"20.
Was it their custom to inspect all cars which passed through
Kansas City, Missouri, on defendant's road? A. No.
"21.
At Pomeroy station, on the night of December 11, 1882, did
said brake-staff break about five-eighths of an inch below
the ratchet-wheel on said brake? A. Yes.
"22.
When fastened to the car, how far was said ratchet-wheel
above the ground? A. About four feet.
"23.
About how many inches did said ratchet-wheel project out from
the brake-staff? A. About three and one-half inches.
"24.
Was said brake-staff fastened to the end of the car by an
iron clasp below the ratchet-wheel? A. Yes.
"25.
Could a person of ordinary height standing on the ground by
said car, have seen underneath said ratchet-wheel where...
