Thornbro v. The Kansas City
Decision Date | 07 July 1914 |
Docket Number | 18,463 |
Citation | 142 P. 250,92 Kan. 681 |
Court | Kansas Supreme Court |
Parties | JULIA F. THORNBRO, as Administratrix, etc., Appellee, v. THE KANSAS CITY, MEXICO & ORIENT RAILWAY COMPANY, Appellant |
Decided July, 1914.
Appeal from Sumner district Court; CARROLL L. SWARTS, judge. Opinion on rehearing filed July 7, 1914. Reaffirmed. (For original opinion see 91 Kan. 684, 139 P. 410.)
Judgment affirmed.
SYLLABUS BY THE COURT.
1. NEGLIGENCE--Death of Brakeman--Rule as to Coupling Cars--Waiver. A rule of the defendant company provided that The jury found that the rule was not enforced but was disregarded by the defendant at the time of the injury for which the action was brought. Upon an examination of the evidence it is held sufficient to support the findings and the general verdict by which, upon the issues presented, a waiver of the rule was also found. Questions concerning the interpretation of the rule are referred to but not decided.
2. SAME--Federal Employers' Liability Act -- Interstate Commerce. The question whether the brakeman was engaged in interstate commerce at the time he was killed, decided in the former opinion, is reconsidered, and that opinion is adhered to.
John A. Eaton, D. W. Eaton, H. J. Eaton, all of Kansas City, Mo., W. T. McBride, of Wellington, and Chester I. Long, of Wichita, for the appellant.
J. D. Houston, and C. H. Brooks, both of Wichita, for the appellee.
A rehearing was granted in this case upon the effect of the rule referred to in the former opinion. (Thornbro v. Railway Co., 91 Kan. 684, 139 P. 410.) The scope of the rehearing was enlarged to a reconsideration of the question whether the deceased, Thornbro, was engaged in interstate commerce when injured.
Only that part of the rule alleged to have been violated was given in the former opinion. The entire rule is:
The rule was set out in the answer, followed by an allegation:
"That disobeying and violating said rule the said J. N. Thornbro . . . carelessly and negligently went between the cars of said train while the same were in motion for the purpose of attempting to uncouple said cars, . . . and by reason of the violation on his part of said rule, the injuries which resulted in his death were caused and occasioned."
The plaintiff pleaded a waiver of the rule. Competent evidence having been offered tending to prove the waiver, the district court instructed the jury that:
Upon this issue the jury in special findings found that the defendant had not enforced but had disregarded the rule prior to Thornbro's death. The contention of the defendant is that the evidence of a waiver of the rule concerns only that part of it which forbids employees to go between cars while in motion to do their work. It is asserted that:
"There is not a syllable of evidence that the rule was ever disregarded so far as it required employees to examine coupling apparatus and if the same was out of order not to attempt to make coupling."
It is argued that the rule covers different subjects, and that a waiver of the part prohibiting employees from going between cars does not impair the force of the part requiring an examination of the apparatus. Counsel say:
"The portion of the rule relative to coupling apparatus and its inspection remains as effective as ever."
It should be observed that although the defendant pleaded the rule in its entirety, the only violation alleged was that Thornbro went between the cars while in motion. There is no allegation of any failure to examine or inspect, if that should be considered separate and apart from the duty to refrain from going between cars. But these two parts of the rule are so interwoven in their obligations, as well as in the terms in which they are expressed, that it is difficult to wholly disassociate them. No good reason is apparent for going between the cars unless it should be found or believed that the coupling apparatus could not otherwise be used. Proof that employees habitually went between the cars to couple and uncouple them to the knowledge of the company implied a waiver of the requirement of examination, as well as a waiver of the prohibition, if as a practical matter there can be any substantial separation between the two. It is unnecessary, however, to discuss this distinction further, either with respect to the language of the rule or the pleading upon this issue, for the evidence tended to prove a waiver of the rule, not only in respect to going between the cars, but in respect to the examination of the coupling also. A switchman who had been in the employ of the defendant a considerable time testified that he knew of the custom of brakemen on that road. Asked to state what that custom was, he said:
There was other testimony of the same import. It appears that the custom was to enter between the cars after ascertaining that the lever would not work. Whatever examination the rule requires must necessarily be done hurriedly as an incident of the principal duty to make the coupling. The act of going between the cars directly follows the examination. These acts are not divorced in the testimony, nor in practical operation. It must also be remembered that the jury found that the rule and not a particular part of it had been waived.
It is further contended that no actionable negligence on the part of the defendant is shown, because the only negligence alleged or found is the use of a car with a...
To continue reading
Request your trial-
Benson v. Bush
... ... (Barker v. Railway ... Co., 88 Kan. 767, 129 P. 1151; Thornbro v. Railway ... Co., 91 Kan. 684, 139 P. 410; Thornbro v. Railway ... Co., 92 Kan. 681, 142 P ... finding that it arose out of such employment ... In ... Stewart v. Kansas City, 102 Kan. 307, 171 P. 913, an ... employee was injured by having mortar playfully or wantonly ... ...