Toops v. The Atchison

Decision Date04 May 1929
Docket Number28,499
Citation128 Kan. 189,277 P. 57
CourtKansas Supreme Court
PartiesMABEL G. TOOPS, as Administratrix of the Estate of M. G. Toops, Deceased, Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

Decided January, 1929.

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment affirmed.



1. MASTER AND SERVANT--Federal Employers' Liability Act--Evidence -- Sufficient to go to Jury. In an action under the federal employers' liability act by a widow, as administratrix, to recover for the death of her husband, the evidence considered and held sufficient to require submission to the jury.

2. SAME--Sufficiency of Evidence to Support Judgment. And further, the evidence held to have been sufficient to uphold the jury's findings of negligence on the part of defendant and to support the verdict and judgment.

3. APPEAL AND ERROR--Review--Necessity for Presentation to Trial Court. Alleged errors not brought to the attention of the trial court cannot form a basis for review in an appellate court.

4. MASTER AND SERVANT -- Instructions. Complaint of instructions and that plaintiff was not properly appointed administratrix considered and not sustained.

William R. Smith, Owen J. Wood, Alfred A. Scott, Alfred G. Armstrong, all of Topeka, John S. Simmons, of Hutchinson, and William Osmond, of Great Bend, for the appellant.

Carr W. Taylor and James N. Farley, both of Hutchinson, for the appellee.

Hopkins J. Marshall, Hutchison, JJ., Burch, J. dissenting.



The action was one under the federal employers' liability act by a widow, as administratrix, to recover for the death of her husband. Plaintiff prevailed, and defendant appeals.

The facts were substantially these: M. G. Toops had been in the employ of the defendant railway company since 1913. For several years prior to August 12, 1926, he had been in passenger service running out of Kansas City. The middle of August of that year he was transferred to Dodge City as freight conductor from Dodge City to Elkhart. (He had not run on this line for some thirteen years.) On August 12, 1926, with a crew consisting of himself as conductor; Nolan, head brakeman; Hemphill, rear brakeman; Hall, engineer, and Phillips, fireman, he ran from Dodge City to Elkhart. They passed through Rolla in the afternoon, but did not stop. They started on the return trip from Elkhart about eleven o'clock the night of August 12, picked up four empty cars at Wilburton, and arrived at Rolla between 12:30 and 12:45 the morning of August 13. The train consisted of about thirty cars.

The main line of the defendant railway company through Rolla runs approximately east and west. There was a passing track north of the main-line track, 1,600 or 1,700 feet in length, and another passing track, 800 feet in length, south of the main-line track and south of the depot, which was also south of the main-line track. South of the last-mentioned passing track was a third track which ran to two elevators, which were south and west of the depot. For convenience we will denominate this the elevator track. Crossing all the tracks west of the depot and passing between the elevators was a public road.

Upon arrival at Rolla the train stopped, with the engine just west of the depot. Hemphill and Toops, who were riding in the caboose, got out and walked toward the front of the train, one on either side. They had orders to pick up five loaded grain cars which were at the elevators on the elevator track and to take fifteen empty grain cars from the north passing track and spot them at the elevators on the elevator track. Nolan, who had been riding the front of the train, took the engine with the four empty cars picked up at Wilburton, went east on the main line, backed on to the elevator track and picked up the five loaded grain cars. Hemphill went across to the elevator track and assisted Nolan in connecting up the loaded grain cars. Having done so, they went on east, got on the mainline track and then backed west to a coupling with the train, Toops making the connection with the air hose. Nolan, Hemphill and Toops met on the station platform and went over the switch list together.

The grain cars on the north passing track were in two sections, four or five of them west of the public road crossing. East of the grain cars on the passing track were twelve stock cars. There was a cross-over switch from this north passing track to the main line about 900 feet east of the depot. The stock cars were foul of the cross-over switch, and in order for the engine to get on the north passing track to connect up with the empty grain cars it was necessary for it to go to the east end of the passing track, back into the stock cars, push them back and couple on to the grain cars. Nolan went east with the engine, backed in on the north passing track and coupled into the east end of the stock cars.

Hemphill left Toops, went from the main line north to the passing track and coupled up the stock cars with the grain cars. Toops remained on the station platform, going through his switch list. After coupling with the grain and stock cars they all (except Toops) proceeded east on the north passing track out on the main line. Nolan last saw Toops alive on the platform at the time the grain cars were pulled out on to the main line. Hemphill last saw him alive on the east end of the platform with his lantern on a truck and his train book in his hand, looking through his switch list. He was run over and killed at a derail on the elevator track about 300 feet east of the depot by the grain cars which were "kicked in" on such track by the train crew. There was a rather sharp curve in the elevator track where it left the main line. It went through a cut, the bank of which on the south side was close to the elevator track and eight or ten feet high. A person on the elevator track at the derail mentioned could not be seen by the engine or train crew at the point where the "kick in" was made.

The principal question for our consideration is whether under all the facts and circumstances there was sufficient evidence to take the case to the jury and to sustain the jury's finding that the defendant was negligent in the manner in which it "kicked in" the cars.

The jury answered special questions as follows:

"1. Was M. G. Toops, the deceased, in charge of the train and switching operations at and before the time he was killed? A. Yes.

"2a. Was M. G. Toops killed by coming into contact with the fifteen grain cars that were being placed on the elevator track?

"2b. If you answer the preceding question 'yes,' state which car, if any, struck Toops. A. The first car on west end of the fifteen grain cars.

"3. Were there any marks of blood on the rear car of the fifteen grain cars? A. There was no direct evidence to show there was or was not.

"4. Were there marks of blood on the south wheels of all the other grain cars except the rear car? A. Yes.

"5. Did Toops know of the coming on the elevator track of the fifteen grain cars? A. He knew they were to come.

"6. Was Conductor Toops supplied with a good lantern? A. He had a good lantern.

"7. If you answer Q. No. 6 in the affirmative, then state if he could have by the aid of said lantern seen the approaching cars. A. No.

"8. Had not Toops formerly worked on the Elkhart branch from Dodge City to Elkhart? A. Yes.

"9. Had the yards at Rolla, Kan., been materially changed since he worked on said line? A. We don't know.

"10. State fully in what the negligence of the defendant consisted, if any. A. First, in not protecting rear end of fifteen grain cars. Second, in engineer not sounding signal when starting to back cars around curve and through cut. Third, poor condition of the track at the derail switch."

The defendant contends that the plaintiff failed to show many essential facts necessary to entitle her to go to the jury on the issues. To determine the correctness of this contention requires a careful review of what evidence had been adduced. The facts narrated above are not in dispute and need not be repeated.

A book of rules prepared by the defendant and issued to trainmen for their government in handling of trains was introduced in evidence. Some of these rules are pertinent here. And it is perfectly clear they were not followed.

"STATION.--A place designated on the time-table by name, at which a train may stop for traffic; or to enter or leave the main track; or from which fixed signals are operated.

"YARD.--A system of tracks within defined limits provided for the making up of trains, storing of cars and other purposes, over which movements not authorized by time-table, or by train order, may be made, subject to prescribed signals and regulations."

Under the evidence Rolla is a "station."

"SEC 102. When cars are pushed by an engine (except when shifting in making up trains in yards) a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need.

"SEC. 320. Trainmen and yardmen, before switching or moving cars at stations, must ascertain that there are no persons or property on or about the same that might be injured or damaged by so doing.

"RULE 381. Conductors of freight trains are required to do their work thoroughly at stations, bearing in mind that trains are run to do the business of the road and not merely to make time over it. Trains, however, are expected to run with regularity and as nearly on time as the prompt performance of work and rules will permit.

"RULE 396. They must do such switching as shall be necessary in taking cars for their own trains or in leaving cars from the same. Local freight trains are generally to do necessary...

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