Union Pac. Ry. Co. v. Geary

• Decision Date: 11 November 1893
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. ELIZABETH GEARY, as Administratrix of the estate of Jeremiah Geary, deceased
• Court: Kansas Supreme Court

34 P. 887

52 Kan. 308

THE UNION PACIFIC RAILWAY COMPANY v. ELIZABETH GEARY, as Administratrix of the estate of Jeremiah Geary, deceased

Supreme Court of Kansas

November 11, 1893

Error from Ellsworth District Court.

AUGUST 11, 1888, Jeremiah Geary, who was and had been in the employ for many years as a track repairer or section hand, was killed by being run over by a train of cars of the Union Pacific Railway Company. He left a widow and five children. Geary, at the time of his death, was 39 years old, a healthy man, sober and industrious, and, as such track repairer, was earning $ 1.25 per day, with which he supported his family. About 2 P. M. of August 11, 1888, Geary, as one of a gang of track repairers composed of Mike Hines, Dan. Yordy, Harry McGuire, and Geary, and under Section Foreman Joe Rabas, was engaged in repairing the track of the Union Pacific railroad at a point about one mile east of Mt. Zion, in Ellsworth county. There was a wagon crossing known as the "Henderson crossing" near Clear creek. The men were along the road as follows: Rabas, Hines and Yordy were on the north side of the track at the Henderson crossing; McGuire and Geary were on the south side of the track rails, or 90 feet, east of the crossing, east of the crossing, Geary being three and one rail east of McGuire. The evening previous Rabas had received orders that a car of ties for use on his section was coming, but just when he did not know. The section men were not informed of the coming of the ties, but all knew ties were needed, and that they were needed where they were working at the time of the injury to Geary, and did not know the ties were to be unloaded elsewhere until told by Rabas. There was no evidence that Rabas informed the men, or any of them, where the ties were to be unloaded until after the death of Geary. Beginning just west of this Henderson crossing, the track was on a high fill or dump extending back about 3,000 feet, gradually getting higher and the sides of the dump becoming steeper, to the culvert near the center where it was about 20 feet high. The top of the dump was about eight inches wider than the ties. Along where the injury occurred, the slope or angle of the dump was 45 degrees. A man going along the side of the dump had to watch where he went or he would fall. From the Henderson crossing west, the track of the railroad rises with a heavy grade extending back to Mt. Zion, a mile to the west.

About 2 o'clock in the afternoon of the 11th day of August, 1888 a freight train consisting of 18 or 19 cars approached the foreman and his trackmen from the west. A long whistle was sounded. No other signal was given at the time. The fireman was on the north side of the engine cab, and the engineer was on the south side. As the engine passed Rabas, the foreman, the fireman called out of the engine, "we should go back." This was to Rabas, who then called to the men, "that they should go back toward the caboose." Geary was on the opposite side of the track, three rails' length -- about 90 feet -- east of Rabas, and the moving train was between them. It was not shown that Geary heard Rabas's direction. As the train passed Geary and McGuire, the engineer called to McGuire, "Harry, get on the train; there is a car load of ties to be distributed." Delaney, the head brakeman, as he passed Geary and McGuire, testified: "I told them we had a car of ties to unload." Immediately the men, with whatever speed they could, began making their way along the side of the dump toward the rear of the train. The ties were back in the train, toward the caboose. The men hastened toward the rear of the train, which was still moving slowly, and checking up under brakes. The conductor was on the front platform of the caboose. Rabas testified: "That they [meaning himself and men] went trotting. As soon as he got to the caboose, he jumped on the step and went up and spoke to the conductor as soon as he got to him." Three of the section men also got on the caboose. Geary did not go clear back to the caboose, but climbed upon the third car from the caboose, and passed from that back to a car of ties, which was the second one from the caboose. The conductor asked Rabas "if the men were all on." Rabas looked and saw his men on the platform of the caboose and Geary on the car with the ties, and then he said, "they were all on." The conductor then made a motion with his hand to the engineer, and the train started. At the time of giving the motion to go ahead, the conductor saw Geary standing on the car of ties. As soon as the train started, there was a jerk of the cars, and Geary was thrown, or fell, between the cars. Then his body rolled away from the train, and one leg was left between the tracks under the cars.

On the 22d day of June, 1889, Mrs. Elizabeth Geary, the administratrix of the estate of Jeremiah Geary, deceased, commenced her action against the Union Pacific Railway Company, to recover $ 10,000, alleging that the death of her husband was caused as follows:

"That he, the said Jeremiah Geary, being employed by said defendant as a track repairer, and, in pursuance of his duties in that behalf, got upon one of the cars of defendant for the purpose of unloading certain ties thereupon, said ties being designed for present use in repairing defendant's track a short distance east of the place where said Jeremiah Geary got upon said train; that the said train of cars being then and there operated by said defendant, its agents, servants, and employes; that while the said Jeremiah Geary was upon said car as aforesaid, by the gross negligence, carelessness, wrongful act, neglect, omission and default of the agents, engineers and superintendents of said defendant, while concerned in managing and conducting the business of said defendant, in the operating of said train of cars of defendant, and in causing said train of cars to be suddenly started, with a violent and unusual jerk or motion, and without giving any signal or warning of the intended movement of said cars, he, the said Jeremiah Geary, was, in consequence thereof, thrown from the car he was on and bruised and mangled by the cars of defendant, so that he, at the date aforesaid, died from the injuries then and there received as aforesaid."

Upon the trial, at the January term of court for 1890, the jury returned a verdict for Mrs. Elizabeth Geary, administratrix, and against the Union Pacific Railway Company, for $ 4,500. Judgment was rendered thereon, and the railway company brings the case here.

Judgment affirmed.

A. L. Williams, N. H. Loomis, and R. W. Blair, for plaintiff in error:

The demurrer to the evidence should have been sustained. The only allegation of negligence in the petition is "in causing said train of cars to be suddenly started, with a violent and unusual jerk or motion, and without giving any signal or warning of the intended movement of said cars." Geary knew, or should have known, that when this train started there would be a jerk, and he should have acted accordingly. The defendant cannot be held liable, if the motion of the train was not violent or unusual. If the jerk was no more than is incidental to the moving of such a train, there was no negligence. Central Rld. Co. v. Sims, 7 S.E. 176.

By voluntarily climbing upon the freight car when he had no duty to perform there, and when a safe place was provided for him on the caboose, he brought himself clearly within the rule stated in the case of U. P. Rly. Co v. Estes, 37 Kan. 715; and by carelessly standing on a loose tie in a dangerous place, without bracing himself in some way, he brought himself within that general rule which requires all adults of sound mind to exercise a reasonable degree of care for their own safety.

The demurrer should have been sustained, for two reasons: First, because plaintiff failed to prove the negligence alleged in her petition; and, second, because she did prove contributory negligence on the part of the deceased. In regard to the first proposition, we call the court's attention to the case of Wisner v. Bias, 43 Kan. 458. The rule laid down in that case is as follows:

"Where the evidence of the plaintiff does not support the allegations in her petition, and a demurrer is presented to such evidence by the defendant, such demurrer should be sustained; and, if overruled, is error."

In the case of Brown v. Railroad Co., 31 Kan. 1, the court holds, that unless plaintiff introduces some testimony to prove every material fact of his case, a demurrer should be sustained. The material fact to be proved in this case was the sudden starting of the train with an unusual jerk. On the proposition that plaintiff's testimony showed contributory negligence on the part of the deceased, we call the court's attention to the case of U. P. Rly. Co. v. Adams, 33 Kan. 427. The rule stated in that case is as follows:

"Where an action is brought to recover for a personal injury, and the plaintiff's testimony shows that his own negligence contributed directly to the injury, he has failed to make out a prima facie right to recover, and a demurrer interposed to his evidence should be sustained."

Certain of the findings were against the evidence.

The motion for judgment should have been sustained. By the eighteenth instruction, the jury were told that plaintiff could not recover unless the train was suddenly started, with a violent or unusual jerk or motion, without giving any signal or warning. The jury had failed to find the very fact the court told them they must find to entitle the plaintiff to recover. It does not matter whether the eighteenth instruction was good law or not; it was the law of this case and the jury should have followed it. By their general verdict they disobeyed the direction of ...