Union Pac. Ry. Co. v. Springsteen

• Citation: 41 Kan. 724,21 P. 774
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. J. W. SPRINGSTEEN, as Administrator of the estate of Harry E. Phillips, deceased
• Decision Date: 10 May 1889
• Court: United States State Supreme Court of Kansas

21 P. 774

41 Kan. 724

THE UNION PACIFIC RAILWAY COMPANY v. J. W. SPRINGSTEEN, as Administrator of the estate of Harry E. Phillips, deceased

Supreme Court of Kansas

May 10, 1889

Error from Pottawatomie District Court.

THE opinion states the case.

Judgment reversed.

A. L Williams, and Chas. Monroe, for plaintiff in error.

D. V Sprague, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

Harry E. Phillips, deceased, was employed by the Kansas Pacific Railway Company as a switchman in its yards at Wamego, Kansas, and on the afternoon of the 6th day of June, 1886, while so employed, was killed. J. W. Springsteen, defendant in error, was duly appointed and qualified as his administrator, and as such brought this action against the company, and at the February term, 1887, of the Pottawatomie district court obtained a judgment for $ 6,000. The company is in this court as plaintiff in error.

The facts surrounding the death of Phillips are substantially these: The engineer and fireman of the switch engine, with Phillips, were moving a caboose from the main to a sidetrack, known as the "caboose track;" in order to do so the engine, facing west, pushed the caboose westward on the track on which it stood beyond where the caboose track joined with the main track; then by backing down toward the east, while in motion the caboose would be uncoupled from the engine, which passing down the main track faster than the caboose would pass the point where the caboose track was joined to it, when the switchman would open the switch and the caboose coming down more slowly would run in upon the caboose track. This was the usual method of running cabooses upon this side-track. On this afternoon, while the engine was backing down with the caboose attached to it, Phillips stepped in between the caboose and engine at the Ash-street crossing, for the purpose of uncoupling the caboose from the engine. (Ash street is a public street in the city of Wamego.) After he had pulled the coupling-pin and was stepping out from between the engine and caboose, his foot slipped in between the rail and the plank next to it on the crossing, and being unable to extricate it the caboose broke him down and crushed him under its wheels.

The plaintiff alleges in his petition in substance, that the defendant was guilty of gross negligence and carelessness in providing and using a defective, faulty and improper plank at the crossing, and that by the gross negligence and carelessness of said defendant in allowing and suffering said plank to be and remain at said crossing in an unsafe and dangerous condition, it made the crossing unsafe and dangerous. Concerning this plank there is evidence showing that a part of it was "wany-edged;" that is, that its edge was not square for the entire thickness of the plank. From its appearance it was evidently sawed from the log next after the outside slab had been cut off. In laying it down it was placed with the broad side up, presenting on the surface the appearance of a perfect plank, but the side which appeared square was, in fact, tapering and uneven. In laying down planks at a crossing there should be a space of two and a quarter to two and three-quarters inches left between the rail and the plank on the surface; this was the distance of this plank from the rail at the surface, but underneath, on account of the plank diminishing back from the edge at the surface, there was a cavity of six or seven inches between the lower part of the plank and the rail. It is in evidence that the upper part of the edge of this plank next to the rail had been broken, slivered or bruised off probably by the travel over the street, so that instead of the surface presenting a distance of two and a quarter to two and three-quarters inches as it should have done, there was a space of eighteen inches or two feet long at the place where this plank was "wany-edged," where the edge of the plank was from three to three and three-quarters inches from the side of the rail at the surface. Phillips in some way put his foot through this opening; as soon as his shoe passed through it at the top there was plenty of room for it...