The Union Pacific Railway Company v. Cappier

• Decision Date: 11 April 1903
• Docket Number: 13,073
• Citation: 66 Kan. 649,72 P. 281
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. ADELINE CAPPIER
• Court: Kansas Supreme Court

72 P. 281

66 Kan. 649

THE UNION PACIFIC RAILWAY COMPANY v. ADELINE CAPPIER

No. 13,073

Supreme Court of Kansas

April 11, 1903

Decided January, 1903.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury to Trespasser -- Duty of Employees. A trespasser on a railway-track was struck by a moving car to which an engine was attached, and injured without fault on the part of the servants of the company. Held, that the failure of the railway employees operating the car and engine to take charge of the wounded man and give him care and attention was not the violation of a legal duty for which the company was liable.

2. RAILROADS -- Case Distinguished. The case at bar is distinguishable from those where the servants of the railway company were at fault, and also from those where the injury was occasioned without fault, and the negligent acts or omissions occurred after the company had taken the injured person in charge.

N. H Loomis, R. W. Blair, and H. A. Scandrett, for plaintiff in error.

C. W. Trickett, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

This was an action brought by Adeline Cappier, the mother of Irvin Ezelle, to recover damages resulting to her by season of the loss of her son, who was run over by a car of plaintiff in error, and died from the injuries received. The trial court, at the close of the evidence introduced to support a recovery by plaintiff below, held that no careless act of the railway company's servants in the operation of the car was shown, and refused to permit the case to be considered by the jury on the allegations and attempted proof of such negligence. The petition, however, contained an averment that the injured person had one leg and an arm cut off by the car-wheels, and that the servants of the railway company failed to call a surgeon, or to render him any assistance after the accident, but permitted him to remain by the side of the tracks and bleed to death. Under this charge of negligence a recovery was had.

While attempting to cross the railway-tracks Ezelle was struck by a moving freight-car pushed by an engine. A yardmaster in charge of the switching operations was riding on the end of the car nearest to the deceased and gave warning by shouting to him. The warning was either too late or no heed was given to it. The engine was stopped. After the injured man was clear of the track, the yardmaster signaled the engineer to move ahead, fearing, as he testified, that a passenger-train then about due would come upon them. The locomotive and car went forward over a bridge, where the general yardmaster was informed of the accident and an ambulance was summoned by telephone. The yardmaster then went back where the injured man was lying and found three Union Pacific switchmen binding up the wounded limbs and doing what they could to stop the flow of blood. The ambulance arrived about thirty minutes later and Ezelle was taken to a hospital, where he died a few hours afterward.

In answer to particular questions of fact, the jury found that the accident occurred at 5:35 P. M.; that immediately one of the railway employees telephoned to police headquarters for help for the injured man; that the ambulance started at 6:05 P. M. and reached the nearest hospital with Ezelle at 6:20 P. M., where he received proper medical and surgical treatment. Judgment against the railway company was based on the following question and answer:

"Ques. Did not defendant's employees bind up Ezelle's wounds and try to stop the flow of blood as soon as they could after the accident happened? Ans. No."

The lack of diligence in the respect stated was intended, no doubt, to apply to the yardmaster, engineer and fireman in charge of the car and engine.

These facts bring us to a consideration of the legal duty of these employees toward the injured man after his condition became known. Counsel for defendant in error quotes the language found in Beach on Contributory Negligence, third edition, section 215, as follows:

"Under certain circumstances, the railroad may owe a duty to a trespasser after the injury. When a trespasser has been run down, it is the plain duty of the railway company to render whatever service is possible to mitigate the severity of the injury. The train that has occasioned the harm must be stopped, and the injured person looked after; and, when it seems necessary, removed to a place of safety, and carefully nursed, until other relief can be brought to the disabled person."

The principal authority cited in support of this doctrine is Northern Central Railway Co. v. The State, use of Price et al., 29 Md. 420, 96 Am. Dec. 545. The court in that case first held that there was evidence enough to justify the jury in finding that the operatives of the train were negligent in running it too...