The St. Louis & San Francisco Railroad Company v. Johnson

• Decision Date: 09 June 1906
• Docket Number: 14,622
• Court: Kansas Supreme Court
• Parties: THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. SARAH E. JOHNSON

86 P. 156

74 Kan. 83

THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. SARAH E. JOHNSON

No. 14,622

Supreme Court of Kansas

June 9, 1906

Decided January, 1906.

Error from Johnson district court; WINFIELD H. SHELDON, judge.

STATEMENT.

SARAH E. JOHNSON brought an action against the plaintiff in error to recover for the death of her son, William A. Johnson, a brakeman, who was killed while in the employ of the railroad company near Scullin, in the Indian Territory. She recovered a verdict and judgment for $ 2000, and the company prosecutes this proceeding in error.

William A. Johnson was thirty-six years of age at the time of his death, and unmarried. He had for a number of years been the chief support of his mother, the defendant in error, who was a widow aged sixty-five years. This was his first trip in the employ of the plaintiff in error, although he had had twelve years' experience as a brakeman. He was head brakeman of a freight-train made up at Sapulpa, I. T., on the 6th of November, 1902, which left that point at about four o'clock in the afternoon for Sherman, Tex. The train was composed of about twenty box cars, flat cars and coal-cars (some loaded and some empty), an engine and a caboose. The train crew consisted of the conductor, who had sole charge of the train, the head and rear brakemen, the engineer, and the fireman. The deceased had nothing to do with making up the train at Sapulpa. About midway of the train was a "Frisco" box car (No. 7706), and next to it on the south was a flat car loaded with steel rails. At Sapulpa where the train was made up, and at Francis the plaintiff in error had inspectors and repair-shops, where light repairs were made.

The deceased started from the caboose about two o'clock in the morning of November 7 in the performance of his duties which required him to pass over the tops of the cars to reach the head of the train. He was last seen by Roy Gardner, the rear brakeman, who was in the cupola of the caboose and who was the principal witness for the plaintiff. Gardner testified that he was watching deceased, and that when the latter reached a point about where box car No. 7706 was witness saw a light, supposed to be the lantern carried by Johnson, suddenly disappear down to the ground on the right side of the train, as it was going south, just below the station of Scullin. At the next station Johnson was missing and the conductor inquired of the witness about him and both looked for him. Gardner then told the conductor that Johnson would be found about a mile and a half south of Scullin, near a certain bridge. The conductor procured an extra engine and went back and found the body, badly mangled, and lying in the center of the track at the place where Gardner saw the lantern fall. The flanges of the wheels and the brake-beams on the west side of car No. 7706 showed the blood marks, while there were no marks on those on the east side.

The petition set up a number of negligent acts on the part of the railroad company, the chief of which was that car No. 7706 was in a defective and dangerous condition because the grab-iron or handhold at the top of the car on the right-hand corner of the forward, or south, end was missing, and the foot-rest or grab-iron on the end of this car near the bottom was mashed in flat against the end of the car, so that a brakeman could not in the night-time find a place for his feet to rest while swinging around from the side ladder to the end of the car so as to reach the flat car, which was lower; and in putting such defective and dangerous car into the train for the use of brakemen and permitting it to remain in the train in such condition; also in failing reasonably and properly to inspect such car at Sapulpa before it was put in the train, and at other stations along the line of plaintiff in error's road; in failing to provide sufficient inspectors at such stations, and in the failure to warn the deceased of the defective and dangerous condition of the car, or to have it marked as a bad-order car.

Car No. 7706, like all other box cars, was provided with handholds and grab-irons. These words are used interchangeably, but, strictly speaking, handholds are on the side or top of a car and grab-irons are on the ends. They are made of an ordinary piece of iron rod, about half an inch thick, about a foot long, turned down at the ends, and bolted or screwed onto the car. They are located at the right- and left-hand corners of the car (diagonally), facing in the direction the car is going. The ones on top of car No. 7706, going south in the train as it was at the time of the accident, were, or should have been, at the southwest and northeast corners, respectively. The top handhold at the southwest corner of the car, which was missing, should have been about six inches from the south end of the car and from eight to sixteen inches from the west side. This was to enable one to get down from the top of the car to the side, or vice versa. On the west side, at the southwest corner, there was a ladder which consisted of five or six handholds about fifteen inches apart. The grab-iron at the southwest corner was on the south end of the car, about a foot from the bottom of the car, and the same distance, perhaps, east from the corner and about six feet from the top. A person getting down from the top of the car, therefore, was not supposed to go over the end of the car, but down on the side and then around the end of the car. The handhold at the northeast corner of this car was also gone, and the brake-staff at the south end was badly bent; but, except as showing the general condition of the car, these defects are not important, for the reason that the deceased would, in the ordinary course, have used the ladder at the southwest corner and the foot-rest on the end of the car to reach the flat car ahead.

It was the theory of the plaintiff that Johnson attempted to descend by the ladder or grab-irons of the box car at this corner, and to swing himself around to the end of the car to place his feet on the grab-iron or foot-hold, and that, the only foot-rest being mashed flat against the woodwork of the car, the weight of his body carried him down and between the cars. The fact that the blood marks were all found on the gearing on that side of this and the following cars in the train tended to support this theory. There was also some evidence of the trainmen that the paint on the end of this box car showed shoe marks, or scratches, indicating an attempt by some person to find a resting place for the feet near where the foot-rest should have been. The defective condition of this car was repaired by the railroad company immediately on its arrival at Sherman, Tex. The evidence established that the deceased was an intelligent, sober and capable brakeman.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Presumption as to Common Law of Another Jurisdiction. In the absence of evidence to the contrary this court will assume the common law of the Indian Territory to be the same as the common law in force in Kansas.

2. RAILROADS--Injury to Employee--Pleading and Proof. In an action against a railroad company to recover for the death of a brakeman which occurred in the Indian Territory, the petition alleged that the laws of that territory in respect to the cause of action surviving, and in reference to descents and distributions, are substantially the same as the laws of Kansas; that plaintiff was entitled to maintain the action in the courts of that territory; and that the courts there would, in such a case, hold her entitled to recover. Held, that, the last averment being a conclusion of law, it was not necessary for plaintiff to offer proof of whet the courts of the Indian Territory would hold in such a case; that upon proof that the action could be maintained in the courts there, and further testimony in the case tending to prove that the proximate cause of the death was the failure of the railroad company to use reasonable diligence to provide reasonably safe appliances for the use of its employees, it became wholly immaterial what was the common law in force in the Indian Territory at the time in respect to fellow servants, and that in such a case it will be assumed that the holding of the courts there would be the same as that of the courts here.

3. RAILROADS--Defective Appliance--Inspection--Inference by Jury. Where the grab-iron on the end of a box car is found in a dangerously defective condition, in being mashed flat against the end of the car, and there is evidence tending to show that the defective condition existed when the car was placed in the train and that a slight inspection would have disclosed its condition, the jury may infer, when no inspection is shown to have been made, that the car was not inspected before it was placed in the train.

4. INSTRUCTIONS--Contributory Negligence--Burden of Proof. An instruction which states that the burden of proof is upon defendant to establish the defense of contributory negligence is not open to the objection that the jury might have been misled when none of the evidence of plaintiff tends to prove contributory negligence.

5. JURY AND JURORS--Argument--Waiver. The party on whom rests the burden of proof has the right to open and close the argument; he may waive the opening or the closing, or both. By waiving the opening he waives the right to close, provided the other party also waives argument. If the other party proceeds to argue the case to the jury, the one who has the burden of the issue is entitled to reply to such argument.

L. F. Parker, and Pratt, Dana & Black, for plaintiff in error.

A. Smith Devenney, for defendant in error.

PORTER J. All the Justices concurring.

OPINION

PORTER...