Union Pac. Ry. Co. v. Fray

• Decision Date: 05 November 1886
• Citation: 12 P. 98,35 Kan. 700
• Parties: THE UNION PACIFIC RAILWAY COMPANY v. WILLIAM FRAY
• Court: Kansas Supreme Court

12 P. 98

35 Kan. 700

THE UNION PACIFIC RAILWAY COMPANY v. WILLIAM FRAY

Supreme Court of Kansas

November 5, 1886

Error from Wyandotte District Court.

AT the July Term, 1884, plaintiff Fray recovered against the defendant Railway Company a judgment for $ 4,000, damages for personal injuries. The defendant brings the case to this court. The material facts are stated in the opinion, and in U. P. Rly. Co. v. Fray, 31 Kan. 739, et seq.

Judgment reversed.

J. P Usher, for plaintiff in error.

R. B Clark, and Nathan Cree, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This case has once before been in this court. (U. P. Rly. Co. v. Fray, 31 Kan. 739; same case, 15 Am. & Eng. Rld. Cases, 158.) After the former decision, the case was returned to the district court, where it was again tried before the court and a jury, and the jury found a general verdict in favor of Fray, who was the plaintiff below, and against the railroad company, which was the defendant below, and assessed the damages at $ 4,000, and also made several special findings of fact; and upon this general verdict and these special findings of fact the district court rendered judgment in favor of Fray and against the railroad company for the amount of the general verdict and costs, and the railroad company, as plaintiff in error, again brings the case to this court and again seeks a reversal of the judgment of the court below.

The evidence introduced on the second trial is very similar to that introduced on the first trial. There are some differences, however, which we may mention as we proceed with this opinion.

The foundation of the plaintiff's action is the alleged negligence of the defendant railroad company in failing to provide and maintain a safe and sufficient derrick, with sufficient ropes and other appliances, for the safe handling of stone 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 company's railroad, called "Tiblow." Samuel Mallison was the railroad company's general superintendent in building the culvert, William Ulrich was the overseer or foreman of the work under Mallison, and John Nelson and the plaintiff Fray were laborers, handling the derrick and performing such other duties as might be assigned to them by either Mallison or Ulrich. This derrick was used in removing stone from a platform near the derrick to a place about forty feet below, where the stone was used in constructing the culvert. In operating this derrick, a rope, usually called a brake-rope, was used, a portion of which was wound around a pinion-shaft. This pinion-shaft, from friction produced in some manner not shown by the record, would become heated whenever it was used unless water at such times was constantly poured upon it, and when allowed to become heated it would burn or char the brake-rope so as to render it frail, weak, and unsafe. If, however, water was poured upon the brake-rope and pinion-shaft while the derrick was being operated, and if occasionally, when the brake-rope became worn, a new one was put in its place, there was no danger in operating the derrick. In the present case there seems to have been negligence in not keeping the brake-rope and pinion-shaft wet, and in allowing the brake-rope to become burnt or charred, and partially worn before removal, so as to render it unsafe, whereby it broke and caused portions of the derrick to break, and thereby caused the injuries of which the plaintiff complains, and for which he seeks damages in this action.

It seems to be admitted by both parties that there was negligence in this respect, but the parties differ as to who was guilty of the negligence. The plaintiff claims that it was principally, if not entirely, the negligence of Ulrich, while the defendant claims that it was wholly the negligence of Fray and Nelson, and principally the negligence of Fray himself. In all probability Ulrich, Fray and Nelson were about equally guilty of the negligence that caused the injuries complained of. The plaintiff claims that the defendant is liable for the negligence of Nelson as well as of Ulrich, as Nelson was one of the defendants' servants; but the defendant claims that the plaintiff is liable for the negligence of Nelson for the following reasons: The railroad company claims that the duty of keeping the brake-rope and pinion-shaft wet, and of seeing that the brake-rope was at all times safe and in proper condition, was imposed particularly upon the plaintiff and Nelson jointly and severally; that they worked together at and near the derrick, and that it was their duty, jointly as well as severally, to watch the derrick, the brake-rope and the pinion-shaft, and to see that at all times the brake-rope was safe and in good condition. On the second trial an effort was made by the plaintiff to show that the brake-rope became unsafe from wear alone, and that it did not burn or char, but we think the effort was a failure. There was also an effort made on the part of the plaintiff to show that although the duty of keeping the brake-rope and pinion-shaft wet was at one time imposed upon the plaintiff, or the plaintiff and Nelson, by Mallison or Ulrich, or both, yet that the plaintiff was afterward relieved from such duty and assigned to another by Ulrich. Whether this was so, or not, is probably one of the principal questions, if not the main question, in the case; and this question under the evidence is one of fact, and not one of law. On the part of the defendant, an attempt was made to show that the duty of keeping the brake-rope and pinion-shaft wet was imposed upon Fray and Nelson by Mallison, and that Ulrich not only did not attempt to relieve them from such duty, but that he had no power to do so if he had so attempted. As Ulrich, however, was the foreman of the work, and as Fray and Nelson worked under him, we would think that the attempt to show that Fray and Nelson had the right to work independently of him or to violate his orders was a failure. As between Fray and the railroad company, we would think from the evidence that Ulrich had the power to assign Fray and Nelson to other and different duties, and to relieve them from the duty of keeping the brake-rope and pinion-shaft wet. The only question then, in this regard is, whether he did in fact relieve Fray from the duty of keeping the brake-rope and pinion-shaft wet. He did not expressly so relieve him, but whether he did so impliedly is the question to be considered. This, as before stated, we think is the main question involved in the case, and under the evidence is purely a question of fact and not one of law, and therefore we do not think that we can decide it as a question of law. Really the only question which we can determine is, whether this question and the other questions of fact involved in the case were fairly submitted to the jury and fairly tried by them. The defendant claims that they were not. It claims that improper evidence was admitted; that improper instructions were given; that proper instructions were refused; that the jury refused to answer proper questions of fact which had previously been submitted to them, and that the court below refused to require the jury to answer such questions. Whether the foregoing errors were in fact committed or not, we shall now proceed to consider.

The first claim of error is, that the district court erred in permitting testimony of a conversation had on the next day after the accident, between John Nelson and Samuel Mallison, to be introduced in evidence. This conversation was concerning matters which occurred on the day of the accident, and which tended to prove negligence on the part of Ulrich. It was concerning past events, and although it occurred between persons in the employment of the defendant, still it was pure and simple hearsay testimony, and not admissible under any rule of law. The authorities cited by the defendant in error are not applicable. It is possible, however, under the other facts and circumstances of the case, that this error is immaterial; but whether it is or not we need not now determine.

It is next claimed that the court below...