Union Pac. Ry. Co. v. Fray

• Decision Date: 02 April 1884
• Citation: 3 P. 550,31 Kan. 739
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. WILLIAM FRAY
• Court: Kansas Supreme Court

3 P. 550

31 Kan. 739

THE UNION PACIFIC RAILWAY COMPANY v. WILLIAM FRAY

Supreme Court of Kansas

April 2, 1884

Error from Wyandotte District Court.

JULY 30, 1883, plaintiff Fray recovered a judgment for $ 2,000 damages for personal injuries, against the defendant Railway Company. It brings the case to this court. The opinion states the facts.

Judgment reversed.

J. P Usher, for plaintiff in error.

R. P Clark, and I. B. Sharp, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by William Fray against the Union Pacific railway company, for the recovery of damages for the alleged negligence of the defendant in failing to provide and maintain a safe and sufficient derrick, with sufficient ropes and appliances, for the safe handling of stone in building a culvert, whereby the plaintiff was injured. The case was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $ 2,000 damages, and costs of suit. The defendant now appeals to this court.

It appears that on November 17, 1882, the plaintiff was in the employment of the defendant, aiding and assisting in building a culvert for the defendant on its line of railroad, in Wyandotte county, Kansas, at a point known as "Deep-hollow bridge," near a station on the line of the road called "Tiblow." The employment of the plaintiff was in the management and operation of a derrick provided by the defendant for moving heavy stones from freight cars to the places required for the construction of the culvert. While the plaintiff was assisting in the management of said derrick, in moving a large stone, a rope attached to a pulley connected with the derrick broke, whereby the cog wheels, pulleys and other parts of the derrick were broken, and portions thereof were thrown against the plaintiff, striking him on his head and face and elsewhere, whereby injuries were inflicted upon him from which he suffered great loss and pain. It is admitted that all that happened was the result of the breaking of the rope, and that the rope was broken because of negligence on the part of some person in not keeping it properly wet with water so as to prevent its burning from friction. The only question between the parties is, Who was the negligent party in not keeping the rope properly wet? Was it the plaintiff either alone or in conjunction with the other employes of the defendant, or was it the other employes alone? The plaintiff claims that it was no part of his duty to attend to the rope or to keep it wet, and that the negligence in not keeping it wet was solely the negligence of the other employes; while the defendant claims that it was the duty of the plaintiff, along with one or two other of its employes, to jointly and severally keep a careful watch of the rope and to keep it thoroughly wet so that it would not burn or break from friction. The evidence with respect to whose duty it was to watch the rope and to keep it wet, at the exact time when the accident occurred, is to some extent unsatisfactory and conflicting; and from this unsatisfactory condition of the evidence it is at least doubtful whether exact justice was done by the verdict and judgment rendered in the case.

Many of the instructions of the court to the jury are hardly applicable to the facts of this case; and many of the special findings of the jury are unfair, evasive and unsatisfactory. It may be that the general verdict of the jury is right; but the manner in which the jury answered many of the special questions submitted to them is certainly sufficient to raise great doubts as to the correctness even of their general verdict.

At the present we shall pass over the instructions of the court and shall first consider the special findings of the jury, remarking, however, that we think it is probable that some of the irrelevant instructions are so misleading under the facts of this case that the judgment ought to be reversed upon the instructions alone. We would also state, before giving the special findings of the jury, that Samuel Mallison was the general superintendent of the work in building the culvert; that William Ulrich was the overseer or foreman of the work, under Mallison; and that John Nelson and the plaintiff were laborers handling the derrick, and that they were the only persons present upon the platform and near the derrick when the accident occurred.

The special findings, with our comments thereon, are as follows:

"1. Did Mallison, for the defendant, have the control and direction of the work, the way and manner of its performance, including the derrick and its apparatus, where the plaintiff was injured? Ans.: Yes, when present; when absent that duty was delegated to the foreman, Ulrich."

This finding we think is correct.

"2. Was the plaintiff instructed by Mallison, acting under the defendant, that there was danger of the brake-rope burning in letting the rock down into place if the rope was not kept wet? A. Any instruction then given was not given particularly to the plaintiff, but generally, to all concerned."

Mallison did give special instructions to the plaintiff, and also general instructions to all concerned.

"3. Did not Samuel Mallison, at or about the commencement of the work for the defendant, direct the plaintiff to get a bucket of water, with a cup or can, to be used in wetting the brake-rope? A. He ordered plaintiff to bring up a bucket of water and a cup, and then he (Mallison) poured the water on himself."

This finding is literally true, but Mallison poured the water on the brake-rope himself principally for the purpose of showing the plaintiff and the other employes how it should be done.

"4. Did not Samuel Mallison direct the plaintiff to keep a bucket well supplied with water at all times, to wet the brake-rope while lowering rock, and to see to it himself that the rope where it wound around the shaft should be kept wet while rock was being lowered? A. The preponderance of evidence shows that he did not so direct him."

This finding, we think, is literally untrue. The question should have been answered by a simple affirmative.

"5. If the brake-rope had been kept wet where it was wound around the shaft and the friction occurred, would it have burned and broken? A. It would not have burnt, but might have broken."

The answer that the rope might have broken is mere conjecture, for the fact is that the rope burned, and it probably would not have broken if it had not burned.

"6. Did the plaintiff observe and obey the directions of Samuel Mallison in respect to keeping the rope wet? A. The plaintiff obeyed all orders that he received in reference to the water until such directions were annulled by other directions from the foreman, Ulrich."

The answer in effect that Ulrich annulled the directions of Mallison, is not responsive to the question, nor is it true. Ulrich gave to the plaintiff another duty to perform -- that of giving signals; but from the preponderance of the evidence, the plaintiff might have attended to both duties -- that of giving signals, and also that of keeping the rope wet. Upon this subject, however, the evidence is conflicting.

"7. Was not the plaintiff repeatedly warned by Samuel Mallison and William Ulrich, the foreman upon the works, to be careful to attend and see that the brake-rope was kept wet while rock was being lowered by the derrick to work below? A. The warnings of Mallison and Ulrich were not particularly to the plaintiff, but general to all concerned."

Some of the warnings were given particularly to the plaintiff, and others were given generally to all concerned.

"8. Were not the accident to the plaintiff and the injury sustained by him caused by the burning of the brake-rope while lowering the rock? A. They were caused by the burning and wear of the rope."

This finding we think is correct.

"9. Would the brake-rope have burned if it had been kept wet as directed by Mallison? A. It would not have burnt."

This finding we also think is correct.

"10. Did any one, for the defendant, at any time relieve the plaintiff from observing the directions given by Mallison in respect to keeping the rope wet? If so, name the person and state what was said. A. The evidence shows that the directions of Mallison in reference to the water were not special to plaintiff. Plaintiff was relieved of any duty devolving on him, in consequence of such directions, when Owens was sent up to pour water on the shaft and the plaintiff assigned the duty of giving signals, by Ulrich."

This finding is evasive and untrue. Some of the directions of Mallison were special to the plaintiff, and some of them were general to all concerned; and while Owens at one or more times was directed to pour water on the rope, and while the plaintiff was directed to give signals, yet the plaintiff was at no time relieved from pouring water on the rope if he could conveniently do so and it was necessary that the same should be done. At the time this accident occurred Owens was not at the derrick or near there, but was down under the bridge mixing mortar, and at that time had nothing to do with the derrick or with wetting the rope.

"11. Was not the plaintiff provided with a bucket for the water which he was to use in wetting the brake-rope and a proper vessel for applying the water to the rope, and was not water flowing near by which the plaintiff could get to wet the rope? A. A bucket, can and water were there, but it was not the plaintiff's duty to use them."

The plaintiff was at one time provided with a bucket, etc., for water, and it was at one time his duty to use them. Whether it was his duty to use them at the particular time when the accident...