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

• Decision Date: 10 April 1909
• Docket Number: 15,954
• Citation: 101 P. 469,80 Kan. 10
• Court: Kansas Supreme Court
• Parties: THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CHARLES R. JUSTICE

101 P. 469

80 Kan. 10

THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. CHARLES R. JUSTICE

No. 15,954

Supreme Court of Kansas

April 10, 1909

Decided January, 1909. [Copyrighted Material Omitted]

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

STATEMENT.

THIS action was commenced in the district court of Johnson county by Charles R. Justice, to recover damages for injuries received while in the employment of the St. Louis & San Francisco Railroad Company. The injuries were sustained February 8, 1907. This action was commenced September 21 1907.

Mr. Justice was employed as a section-hand, under a foreman by the name of George Nelson. The section upon which he was employed extended from Olathe south about six miles. On the morning of February 8 the foreman, with a crew of five men, including the plaintiff, started south with two hand-cars. The foreman and three of the crew were on the car in front, and the plaintiff and C. E. Hill were on the car following. The cars ran close together. When about two miles from Olathe they discovered a train coming from the south. It proved to be a Missouri, Kansas & Texas passenger-train which ran regularly over that road, and was then running on schedule time. The hand-cars were stopped and the foreman said: "We will take this hand-car off here; and the other we will take back to the private crossing." The plaintiff and Hill, without further orders, rolled their car back to the crossing indicated by the foreman, which was fifty to sixty yards distant, and proceeded to take it off the track. They expected a man from the other car to follow them and help move their car, but did not wait for him. The approach to the crossing was a little steep. They lifted one end of the car off the track, and when on the ground it pointed down-hill. The plaintiff was standing at that end. When the wheels were all off the rails the car was inclined to go down the approach. The ground was frozen and had thawed enough to make the surface quite slippery. On this account the plaintiff could not maintain his foothold so as to prevent the car from going down-hill, and for the same reason Hill was unable to render much assistance. In spite of their efforts to hold the car it crowded the plaintiff down the side of the grade. In his attempt to check the car he lost his balance, fell, and was run over and seriously injured. A man from the other car reached them about the time the injury was completed, and assisted in extricating the plaintiff from under the car. He was taken to the railway hospital, where he remained more than two months.

On April 2, 1907, plaintiff made a written statement to the defendant's claim agent, describing how the injury occurred, which reads:

"STATEMENT OF CHARLES JUSTICE.

"SPRINGFIELD, MO., April 2, '07.

"At the time I was injured near Olathe, Kan., on February 8, 1907, I was working on section under foreman George Nelson.

"On leaving Olathe in the morning we had an extra hand-car that we were to take to Bonita for the gang working south of our gang, and for something like a mile back toward Olathe from point where accident occurred. Charley Hill and I were the only men on the regular car, Foreman Nelson and the other men all being on the extra car. They were in front, and Hill and I followed them closely.

"When we were out about two miles from Olathe a passenger-train (I think 106) showed up about one mile south of us, and on seeing the train approaching Foreman Nelson remarked to the men on both cars that we would set the car he was on off at the point where it was then stopped, and that we would run the one Hill and I were on back to a private crossing, about fifty or seventy-five yards, on account of not being room to put both cars off at the same place.

"I did not understand from Nelson's remark that he intended for Hill and I to take the car back and put it off alone, but Hill and I voluntarily rolled the car back to the crossing while Nelson and the other men were putting the other car off, and in getting the car off I was injured.

"When we got back to the crossing I told Hill to put his weight on the rear end of the car, and that I would take hold of the forward end and in this way we would take the car off.

"After turning the car around and starting to roll it away from the track we managed it all right until the hind wheels dropped down off the rail, and then the car gave a lurch forward, and, as there was snow and ice on the ground, I was unable to stop the car, and I lost my balance and fell when I stepped back into a ditch, and the car followed after me into the ditch and one of the handles at the front end of the car struck against my right foot and ankle, and I have been unable to put my foot to the floor yet.

"As I remember, Nelson and the other men had put the front car off and were on their way back toward Hill and I at the time I was injured.

"Two men can put a car like this one off at that crossing without any difficulty, as it was not a heavy car, and there was not much of a load on it.

"The train was not so close but what we might have waited for Nelson and the other men to have assisted us, but there was no apparent reason for doing this.

"I consider that my injury was purely the result of an accident, and that neither Nelson nor any of the men were in any way to blame for it. There was no defect about the car or track that I know of, and I know of no reason for saying that the company is to blame for my injury, but, as I was working for the company's interest at the time I was injured, I feel that the company ought to pay me for time lost.

"I am 56 years old, married, live in Olathe, and have been working for Frisco at different times for the past ten years.

"I have read the above and find it true.

(Signed) C. R. JUSTICE."

During the trial, on cross-examination concerning this statement, he said:

"Ques. In reference to this statement, when you wrote on this, 'I have read the above and find it true,' you did read the statement? Ans. Yes, sir.

"Q. It was true, what you state in here? A. Yes, sir.

"Q. You say now it is true what was read to you? A. I say it is true; yes, sir."

The description given in the petition of how the injury occurred is substantially the same as the statement of the plaintiff herein given. The plaintiff testified on the trial, in part, as follows:

"Ques. And Hill got on the hind end and you said you would take it at the front end? Ans. Yes, sir.

"Q. After turning the car around you started to roll it away from the track and managed it all right until the hind wheels dropped off the rail--that is correct? A. Yes, sir.

"Q. [Reading from the statement:] 'And then the car gave a lurch forward, and, as there was snow and ice on the ground, I was unable to stop the car'--is that right? A. Yes, sir.

"Q. 'And I lost my balance'? A. The car shoved me.

"Q. 'And fell when I stepped back into the ditch, and the car followed after me into the ditch and one of the handles at the front end of the car struck against my right foot and ankle, and I have been unable to put my foot to the floor yet'--that is what you said? A. I don't think I fell; I did n't fall."

"Q. You slipped on the ice? A. Yes, sir.

"Q. You knew ice was there? A. Yes, sir.

"Q. You fell? A. I slipped into the ditch--sat down on the opposite bank.

"Q. Slipping, you fell? A. I sat down.

"Q. By slipping the hand-car ran onto you? A. Yes, sir.

"Q. And if you had n't slipped it would n't have run on you, would it? A. I don't know whether it would or not.

"Q. Were you trying to hold it? A. I was trying to.

"Q. The only two men who had charge of it were you and Mr. Hill? A. Yes, sir.

"Q. Slipping, it come onto you? A. Yes, sir.

"Q. You knew it was icy and slippery? A. Yes sir; we knew it.

"Q. And slippery? A. Yes, sir.

"Q. Let's read on: 'As I remember, Nelson and the other men had put the front car off and were on their way back toward Hill and I at the time I was injured'--that is right? A. Yes; they were coming. They got their car off.

"Q. And were coming toward you? A. Yes, sir.

"Q. At that time this train you had seen had n't gone by yet? A. Not exactly then.

"Q. Now listen further: 'Two men can put a car like this one off at that crossing without any difficulty, as it was not a heavy car, and there was not much of a load on it'? A. Two men can put that car off at that place.

"Q. You did get it off? A. Yes, sir.

"Q. By your slipping it ran onto you? A. By my being unable to hold my feet.

"Q. If you had n't slipped it would n't have run onto you? A. I don't know.

"Q. It was usual and customary for two men to take the car off? A. It was customary for the men handling the car to put it off.

"Q. You did get it off? A. Yes, sir.

"Q. But for the fact it was slippery and you slipped it would n't have run onto you, would it? A. I don't know whether it would or not.

"Q. If you had n't slipped you could have held onto the car? A. Yes, sir.

"Q. And prevented it from running onto you? A. I don't know.

"Q. Did n't you say two men could take it off the track? A. I said they could get it off the track.

"Q. You did? A. Yes; but we did n't manage it after we got it off.

"Q. That was due to your slipping? A. Yes, sir.

"Q. You had told Hill where to go? A. Yes, sir.

"Q. You had told him to get on top? A. Yes, so we could raise it he could do more there than he could at the other end.

"Q. Listen further: 'The train was not so close but what we might have waited for Nelson and the other men to have assisted us, but there was no apparent reason for doing this, as we two could move it'--that is correct, ain't it? A. I don't remember them words; that is what I stated, if it is there.

"Q. 'I consider that my injury was purely...