[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Error
from Wyandotte District Court.
THIS
case was tried by a jury, at the December Term, 1886, of the
district court of Wyandotte county. The material facts are
stated in the opinion and in the special' findings of the
jury. The plaintiff asked the court to instruct the jury as
follows:
"1.
It was the duty of the defendant company to provide and
furnish its employes, among whom was this plaintiff, with a
suitable and safe road, engines, cars, and appliances for
conducting the business, and to select competent and reliable
servants to use and operate the same; and the defendant is
liable for injury occurring to an employe in the operation of
said railroad caused by defective machinery or appliances
upon any of its engines or cars, when such defects could have
been discovered and remedied by the exercise of reasonable
and ordinary care and diligence upon the part of defendant.
"2.
It was the duty of the plaintiff in the discharge of his
duties to exercise reasonable and ordinary care to avoid
injury, and a failure upon the part of the plaintiff to
exercise such care would bar the right of recovery; and the
jury in arriving at their determination as to what
constitutes such reasonable and ordinary care may take into
consideration the age and experience, or want of experience,
of the plaintiff, the kind of labor he was performing, the
orders he was under, if any, and any and all other facts and
circumstances surrounding plaintiff at the time of the
accident.
"3.
If the jury believe from the evidence that there was any
defect in the engine of the defendant or appliances thereof,
either in construction or from injury received thereto, and
that such defect had existed for a considerable time prior to
the accident, and that such defect could have been discovered
by ordinary care and diligence, then no actual notice of such
defects upon the part of defendant is necessary to charge
defendant with liability for injury caused by such defect.
"4.
It is not necessary for the plaintiff, in the first instance,
to prove that he was not guilty of negligence contributing to
the injury, and the defendant company is not excused by any
negligence of the plaintiff which does not amount to a want
of ordinary care on the part of the plaintiff in avoiding the
consequences of the defendant's negligence."
The
court gave the foregoing instructions to the jury, and the
defendant duly excepted.
The
defendant requested the court to give the following
instructions to the jury. Instructions 5, 6, 8, 9, 10 and 11
are in the opinion:
"12.
If foot-boards were provided on the engine to enable those
who did the switching to get upon the engine, and to ride
upon, and plaintiff knew what the foot-boards were provided
for, and those foot-boards were in good condition and could
have safely been used, the plaintiff cannot complain even if
the jury shall find that the step upon which plaintiff was
injured was defective.
"13.
Even if the jury shall find that the step upon which
plaintiff alleges he was injured was out of order, the
defendant was not at fault on that account unless the
plaintiff proves that it (the defendant), or its foreman or
agent who had charge of the locomotive, knew that the step
was out of order, or that it had been out of order so long
that the defendant, or its agent in charge of such engine,
ought, by the exercise of reasonable diligence, to have known
that the step was out of order; nor then if the jury find
that the foot-boards were there for him to ride upon, and
that he could have got upon the rear foot-boards without
exposing himself to danger."
"15.
If the step of which plaintiff complains was adjusted so as
to be convenient for and in the position desired by the
engineer who ran the engine, and the plaintiff had no duty to
perform upon the cab of the engine while in motion that
required him to use said step, he cannot complain of the
position or adjustment of said step, nor recover for any
injury he may have received because of the adjustment of said
step."
"17.
The defendant is not required to have any particular kind of
a step on its locomotive, (but must provide a reasonable
step.) [Words in parenthesis being added by the court.]
"And
it is no ground for recovery in this action if you find that
the kind of step complained of in this action was not as safe
a kind as others in use upon locomotives." [Words in
italics being stricken out by the court. Given as modified,
and excepted to by plaintiff and defendant.]
"18.
In every contract of hiring there is an implied contract that
the servant is competent and fit to discharge the duties of
the service for which he is employed, and that he will
faithfully, honestly, and properly discharge those duties.
[Given.]
"19.
In taking service as a helper to the hostler, the plaintiff
assumed the risk of ordinary danger incident to the position
he occupied, and if the duties of the position required him
to get upon the engine in motion, he assumed the risk of the
ordinary dangers attending the getting on engines in motion.
[Given.]
"20.
If the plaintiff's duties required him to get upon
engines in motion, in doing so he was required and bound to
use such care as was commensurate with that practice, and if
he was negligent at the time of his injury in attempting to
get upon the engine in motion, (and such negligence
materially contributed to the accident,) he cannot recover in
this action. [Words in parenthesis being added by the court.
Given as modified, and excepted to by plaintiff and
defendant.]
"21.
In getting upon the engine in motion the plaintiff was bound
to use his eyes and look and see where he was to step, and if
he did not look, and was injured by reason of any defect in
the step, (which he might have discovered by looking,) he
cannot recover for any injuries he received on account of any
such defect." [Given as modified, and excepted to by
plaintiff and defendant.]
"23.
If the jury believe from the evidence that the defendant
company had placed upon the front end of the locomotive in
question, and upon the rear end of the tender, foot-boards
and hand-rails running clear across the same, upon which
foot-boards the helper and switchmen were to ride while the
engine was in motion, and that the plaintiff could get upon
one or the other of said foot-boards without exposing himself
to any danger, and that the plaintiff had ridden upon such
foot-boards on this or any other engine, and knew the object
and purpose of such foot-boards, it was his duty to have used
them, and not risked the hazard incurred by attempting to get
upon the step of the cab of the locomotive. (If it was
dangerous to do so.) [Words in parenthesis being added by the
court. Given as modified, and excepted to by plaintiff and
defendant.]
"24.
If the jury believe from the evidence that the locomotive was
in motion when the plaintiff attempted to get upon it by the
step in question, (and that it was dangerous to make such
attempt,) and that he could have safely got upon it if he had
waited for the rear foot-board, it was his fault in
attempting to get upon the locomotive by the step; it was his
duty to have waited till the rear foot-board came to
him." [Words in parenthesis being added by the court.
Given as modified, and excepted to by both plaintiff and
defendant.]
The
court instructed the jury as follows:
"1.
The burden is on the plaintiff to establish his right to
recover damages from the defendant in this action by a
preponderance of the evidence.
"2.
By a preponderance of the evidence is not necessarily meant
the greatest number of witnesses, but that evidence which
after a consideration of the entire evidence, is, in the
judgment of the jurors, entitled to the greatest weight.
"3.
The jury are the sole and exclusive judges of the weight of
the evidence and the credibility of the witnesses; if the
jury believe that any witness has willfully and corruptly
testified falsely concerning any material fact, they may
disregard the whole or any portion of the evidence of such
witness. There is no inflexible rule requiring the jury to
believe or disbelieve the whole or any particular portion of
the evidence of any witness.
"4.
In considering the evidence the jury can consider the manner
of each witness while testifying herein; the apparent candor
or want of candor, as the case may be, of each witness; his
apparent bias and prejudice, if any, or freedom from bias or
prejudice, as the case may be; the intelligence of the
witness, his apparent recollection and means of information
concerning the matters about which he testifies, and all
other matters which will assist the jury in arriving at a
correct conclusion concerning any disputed point in the
evidence.
"5.
An employe of a railroad company by virtue of his employment
assumes all the ordinary and usual risks and hazards incident
to his employment.
"6.
As between a railroad company and its employes, the railroad
company is required to exercise reasonable and ordinary care
and diligence, and only such, in furnishing to its employes
reasonably safe machinery and instrumentalities for the
operation of its railroad.
"7.
It will be presumed, in the absence of anything to the
contrary, that the railroad company performs its duties in
such cases, and the burden of proving otherwise will rest
upon the party asserting that the railroad company had not
performed its duty.
"8.
And where an employe seeks to recover damages for injuries
resulting from insufficiency of any of the machinery or
instrumentalities furnished by...
