The Southern Kansas Railway Company v. Michaels

• Decision Date: 05 December 1896
• Docket Number: 9035
• Parties: THE SOUTHERN KANSAS RAILWAY COMPANY v. O. P. MICHAELS
• Court: Kansas Supreme Court

46 P. 938

57 Kan. 474

THE SOUTHERN KANSAS RAILWAY COMPANY v. O. P. MICHAELS

No. 9035

Supreme Court of Kansas

December 5, 1896

Decided July, 1896.

Error from Sumner District Court Hon. L. Nebeker, Judge pro tem.

AFFIRMED.

Judgment affirmed.

A. A Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error.

James A. Ray, and J. E. Halsell, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.

O. P Michaels brought this action against the Southern Kansas Railway Company to recover for personal injuries received while acting as head-brakeman on a freight train running from Cherry Vale to Wellington. The distance between the points was more than 100 miles, and Longton was among the stations on the route. A branch road connected with the line at that point, and there were a number of sidetracks and switches in the yards. Michaels was an experienced brakeman. He was employed by the Company in that capacity in October, 1885, and continued in its service until May, 1886. He re-entered the employment of the Company in February, 1887, and was employed on the run mentioned until April 7, 1887. While engaged in switching in the Longton yards on that day he was hanging to the ladder on the side of a car, with his foot in the stirrup; and while signaling to the rear brakeman was struck on the back, knocked down, and severely injured by a switch-target, which is alleged to have been too close to the track. The switch-stand was midway between two tracks, and the center of the same was only 4 feet and 3 inches from the inside rail of either track. It was about 7 feet high, and on top there projected about 17 inches from the staff a spear or arrow-head used to indicate the direction in which the switch was turned. The cars of the Company projected about 25 inches over the rail, and when the 17-inch spear was turned it would leave a space of about 9 inches between the switch-target and the side of the car. It is customary and proper for the brakeman to hold to the ladder on the side of the car while switching about the yards; and at the time of the injury Michaels was engaged in the performance of his duty, and was giving directions to the rear brakeman with reference to a switch on another track which required adjustment. The train was moving west, while the brakeman with whom Michaels was communicating was east of him; and therefore his back was toward the switch-stand the target of which knocked him off. He was familiar with the yards, and had previously used the switch-stand; but he states that he had never observed that it was so close to the track as to make it dangerous for those who were upon the side of cars passing over the track.

There have been two trials of the case, and in each Michaels has been successful in obtaining a verdict. The first judgment was reversed on account of error committed in the admission of testimony, and because the findings of the jury were unsupported by the testimony and inconsistent with each other. S. K. Rly. Co. v. Michaels, 49 Kan. 388. In the second trial he recovered a judgment for $ 6,860; and the Company brings the case here again, insisting that prejudicial errors were committed in the course of the trial.

We are not favorably impressed with the contention that the testimony is insufficient to support the verdict and judgment. The maintenance of a switch-stand so near the track as to knock from the cars trainmen regularly engaged in the performance of their duties, was a plain case of negligence; and one, too, which warranted the Court in submitting to the jury the question whether or not it was gross negligence. Michaels was using the ladder in the ordinary way and for a proper purpose. He was pursuing the usual course when he gave signals or directions to the rear brakeman to proceed and adjust another switch. For the time being his whole attention was engaged; and his duty required him to look toward the rear of the train instead of in the direction in which it was moving and where the target was. If he had been looking ahead, he would probably have observed that the switch-target was so close to the car as to be dangerous; but his duties appeared to require him to look in a different direction in order to accomplish his work in a proper manner.

It is contended that the plaintiff was aware of the location of the switch-stand and did not exercise due care for his own safety. His own statement, however, is, that while he had run through the yards many times and had previously handled the switch, he had never noticed how close the switch-target came to the passing cars when it was turned toward them. It is easy to understand how he might pass and repass the switch, when the 17-inch spear was not turned toward the cars, without observing that it would be dangerously close when turned toward them; and also that while upon the ground setting the switch he might fail to observe how near the spear was to the passing cars. In Rouse v. Ledbetter, 56 Kan. 348, 43 P. 249, an injury to a switchman resulted from a defective structure in the yard, and one that he might have seen by the reasonable use of his eyesight. It was held, however, that the fact that he was working in that part of the yard and might have seen it if his attention had been called to it, was not conclusive evidence of contributory negligence. It was said:

"The faculty of close observation of objects is largely a gift. Some persons may walk once along a street and be able, without any special effort, to describe every prominent object upon and every projection into the street, while others might go up and down the same street for a year, who could not describe such objects and projections. . . . Many dangers necessarily attend the performance of the duties of a yard switchman, but the master is not allowed...