Walker v. Shelton

• Citation: 59 Kan. 774,52 P. 441
• Parties: WALKER et al. v. SHELTON.
• Decision Date: 05 March 1898
• Court: United States State Supreme Court of Kansas

52 P. 441

59 Kan. 774

WALKER et al. v. SHELTON.

Supreme Court of Kansas

March 5, 1898

Error from district court, Chase county; W. A. Randolph, Judge.

Action by Rosa M. Shelton, etc., against Aldace F. Walker and John J. McCook, as receivers of the Atchison, Topeka & Santa Fé Railway Company. Plaintiff had judgment, and defendants bring error. Affirmed.

A. A Hurd and Stanbaugh & Hurd, for plaintiffs in error.

Madden Bros., for defendant in error.

OPINION

PER CURIAM.

Action by Rosa M. Shelton, the widow of Patrick Shelton, to recover damages for the death of her husband, who was killed while in the employ of the rail-road company. He was a section foreman, and was endeavoring, with the assistance of one man to lift a hand car from the track, because of the approach of an extra train, but was unable to do so, and, when the hand car was struck by the locomotive, a part of the same was thrown against Shelton, killing him. Two grounds of negligence were alleged: One, that the engineer, although he saw the peril of Shelton, and could, by the exercise of reasonable prudence have stopped the train and prevented the injury, failed to exercise any care, but continued to run at an excessive rate of speed until the collision occurred; the other, that the company had failed to furnish sufficient help to operate the had car, and for that reason the men were unable to remove the same from the track.

The question of the failure to furnish adequate help was not submitted to the jury, and the negligence upon which the verdict of the jury was based was that of the engineer in not stopping his engine after discovering the position and peril of Shelton on the track. The averments of the petition certainly made a case of negligence against the company, and we think there was sufficient testimony to support the charge of negligence and to sustain the findings of the jury. If the engineer recklessly ran onto them after discovering that the hand car was fastened on the track, and that they were unable to remove it, or if it was reasonably apparent to him that the car could not be moved by the men, and thereafter he had time to stop the train and prevent a collision, it must be held that he was negligent. Whether Shelton exercised ordinary diligence in the attempt to remove the car, and to gain a place of safety, is peculiarly a question for the jury. It was his duty to use every exertion to lift the hand car,...