The Missouri v. Orton
| Decision Date | 10 July 1903 |
| Docket Number | 13,274 |
| Citation | 73 P. 63,67 Kan. 848 |
| Court | Kansas Supreme Court |
| Parties | THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. FRED ORTON |
Decided July, 1903.
Error from Neosho district court; L. STILLWELL, judge.
Judgment reversed and cause remanded.
T. N Sedgwick, for plaintiff in error.
W. R Cline, and H. P. Farrelly, for defendant in error.
This was an action by Fred Orton to recover for injuries sustained while he was riding on an excursion train. The cars were greatly crowded, the seats were occupied, and many were standing in the aisles. Orton passed through the train looking for a seat, and finding none he stopped in the door of a car, and while standing there a cinder struck him in the eye, causing a severe injury. The verdict was in favor of Orton, but the jury found that the engine of the train was in good repair and was supplied with the best-known appliances to prevent the escape of cinders; that the engineer in charge was both competent and skilful, and so was the fireman; and that the engine was being properly and skilfully managed and operated at the time the injury occurred. The findings, therefore, acquit the company of all negligence as to the construction of the locomotive and its management and operation.
The only other charge of negligence was in failing to keep closed the door of the coach wherein the plaintiff was riding. The rules of the company, it is true, required that the doors be kept closed; but the opening and closing of the doors and windows of cars are not fully within the control of the company or its employees. Passengers pass from one coach to another, and hence the doors are frequently opened; they are also frequently opened by passengers for purposes of ventilation. The mere fact that a cinder comes in at a door or window and strikes a passenger is not evidence of negligence. Cinders come into cars and into contact with passengers, whether they are sitting or standing. Orton might have been struck as readily if he had been occupying an end seat as when standing. As the appliances were of the best and the operation and management proper and skilful, the presumption of negligence does not obtain in favor of the passenger as it otherwise might have done. In view of the excellent condition and skilful operation of the locomotive, the company was no more responsible for the accident than if the cinder had come from a steam thrasher operated in...
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Missouri Pacific Railroad Co. v. Rance
... ... the best known appliances to prevent the escape of cinders ... It was also its duty to see that its engines were properly ... operated and that such was the case at the time the injury ... occurred ... [93 S.W.2d 319] ... Missouri K. & T. Ry. Co. v. Orton, 67 Kan ... 848, 73 P. 63." ... Appellee ... having been injured by the operation of a train, the burden ... was then on appellant to show that it was not negligent. This ... it wholly failed to do, except to show no southbound train ... passed through Gifford on October ... ...
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Louisville & N.R. Co. v. Turner
...action was, and barred recovery. We think the court below committed no error in declining to so instruct the jury." In M., K. & T. R. Co. v. Orton, 67 Kan. 848, 73 P. 63, appellee, while a passenger, finding no seat available, in the open door of a coach as the train was proceeding and a ci......
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Louisville & N.R. Co. v. Roberts
...sustained to the petition, but that defendant was entitled to a directed verdict. To support this position the case of M., K. & T. R. Co. v. Orton, 67 Kan. 848, 73 P. 63, is relied on. In that case plaintiff passed through a looking for a seat, and, finding none, he stopped in the door of t......
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Missouri Pac. R. Co. v. Rance
...duty to see that its engines were properly operated, and that such was the case at the time the injury occurred. Missouri, K. & T. Ry. Co. v. Orton, 67 Kan. 848, 73 P. 63." Appellee having been injured by the operation of a train, the burden was then on appellant to show that it was not neg......