Waymire v. The Atchison

• Decision Date: 05 June 1920
• Docket Number: 22,562
• Citation: 107 Kan. 90,190 P. 588
• Court: Kansas Supreme Court
• Parties: JESSIE L. WAYMIRE, as Administratrix, etc., Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

190 P. 588

107 Kan. 90

JESSIE L. WAYMIRE, as Administratrix, etc., Appellee, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 22,562

Supreme Court of Kansas

June 5, 1920

Decided January, 1920.

Appeal from Butler district court; ALLISON T. AYRES, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Death of Section Foreman--No Actionable Negligence Proven. In an action under the federal employers' liability act to recover for the death of a section foreman who, with the other section men, rode on a hand car following a freight train into a station and stopped his car within a car length or two at the rear of the train which was backed up without the giving of any signal and struck and killed the foreman, held, on the facts stated in the opinion, the railroad company owed the deceased no duty to warn him of the backward movement of the train.

William R. Smith, Owen J. Wood, Alfred A. Scott, all of Topeka, and J. D. Houston, of Wichita, for the appellant.

S. B. Amidon, D. M. Dale, S. A. Buckland, H. W. Hart, Glenn Porter, all of Wichita, George J. Benson, J. M. Pleasant, both of El Dorado, and Ezra Branine, of Newton, for the appellee.

OPINION

PORTER, J.:

In an action under the federal employers' liability act, plaintiff recovered a judgment for $ 11,000 damages for the death of her husband, Joseph E. Waymire, who was a section foreman, and whose death was caused by an accident at the station of Douglass, Kan., about 6 o'clock in the evening of September 28, 1916.

At Douglass the railroad extends north and south. Waymire, with four other section hands returning from work, rode on their hand car behind freight train No. 37, which came into the station from the north on the main track. Standing on the passing track east of the main track, and headed north, was freight train No. 1809, waiting to move north on the main line when train No. 37 should pass south and clear the switch. One hundred seventy-one feet south of the switch stand was a clearance post which indicated the widest distance between the passing track and the main line. Waymire desired to move his hand car south of the switch to avoid the necessity of removing it from the track and to make way for train No. 1809. He followed train No. 37 south of the switch stand, keeping his hand car at an average distance of about two car lengths from the rear of the train. It was claimed by the plaintiff that the train backed up and struck the hand car, causing the injuries which resulted in Waymire's death. The train crew, including the brakeman, conductor, and engineer of No. 37, testified that the train was not backed at any time while it was at the station; and the defendant's testimony was that the backward movement of the rear cars was caused by the running out of the slack, after the engine came to a standstill. The jury found, however, that the train backed. The finding was based upon the dying declaration of Waymire and the testimony of Mrs. Waymire. In his dying statement Waymire said that the train backed up. The Waymires lived near the scene of the accident, and Mrs. Waymire testified that she was out in the yard and saw the two trains standing at the station, and her husband coming in on the hand car, and that train No. 37 backed up about two car lengths. The train consisted of seventy cars and was more than a half mile long. While there was a conflict in the evidence, the finding of the jury determined the fact that the train made a backward movement after it had come to a standstill.

Several minutes before train No. 37 made any backward movement, it had stopped at the station in order to unload merchandise from one of the forward cars. In this position, the rear of the train extended some distance north of the passing-track switch and obstructed the main line, so that it was necessary for the rear brakeman, P. U. Hershler, to go back a quarter of a mile to flag trains that might be approaching from the north. After being recalled and while he was returning, Waymire's hand car overtook him, and he got on the hand car and rode to within two car lengths of the rear of the way car. His testimony was that he stepped off the hand car while it was in motion, ran ahead, climbed on top of the way car, and walked forward on top of the train several car lengths in order to signal to the head end and notify the other members of the crew that he had returned to the train. The evidence shows that he was the only member of the train crew who knew that the hand car was following immediately behind the train. He testified that after the backward movement of the cars, he returned to the end of the train and learned that Waymire had been injured. None of the other section men was injured. The evidence does not disclose whether they jumped or how they escaped injury.

The testimony of a number of experienced railway men, including the conductor and engineer of train No. 1809, a section foreman and a road master, was, in substance, that in their judgment it would not be safe for the hand car to follow along within two or three car lengths of a train on the main track, because of the danger that the train might make a backward movement, and that when the train stopped south of the clearance post, Waymire should have backed his car past the post or have taken the car off the track; that by doing either of these things he could have avoided all danger. The defendant also introduced the printed rules of the company, which provide that all persons engaged in track or bridge work shall keep a sharp lookout for trains from either direction and shall not assume that a train may not come for any certain time, nor act on the assurance of any person to that effect, and must protect themselves at all times, when necessary, with proper signals; that the greatest care must be exercised by section men and bridgemen while using hand cars on the main track, to avoid collisions with trains.

The jury made a finding that their verdict was based on the negligence of the defendant in improperly handling train No. 37, by moving it backward without giving a signal. They were asked to state which employee was guilty of the negligence, and answered that it was the rear brakeman. They found that the employees in control of the train knew of the dangerous proximity of the deceased to the rear of the train before the collision, and that the employees learned of this fact from the rear brakeman, "who rode in on the hand car and knew its position." They found that Waymire was not guilty of negligence contributing to his death; that just before the collision occurred the hand car came to a standstill about two or three car lengths from the rear of the train, and that the trainmen, after stopping the train, reversed the engine and moved the train toward the point of collision with the hand car.

Finding No. 14 was to the effect that there was no necessity for Waymire to follow on through the north switch behind the south-bound train, aside from the inconvenience of removing the hand car from the track at some point north of the switch in order to let train No. 1809 pass; and further, that there was nothing to prevent Waymire from easily avoiding the collision by removing the hand car from the track at some point north of the switch. The finding that just before the accident occurred the employees in charge of the train knew of the position of the hand car and of Waymire, must be construed as meaning that notice to the rear brakeman of these facts was notice to the engineer and conductor of the train who were in charge of the movement of the train. It appears, however, that Hershler was at one end of the train and the engineer was at the other end, and that the train was more than a half mile in length. The findings of notice and negligence are obviously based upon the theory that it was the duty of the rear brakeman, upon reaching the top of the train, to notify the engineer at the other end of the train of the position and situation of the hand car.

The defendant contends that the only question involved in the case is, whether in the operation of a railroad "a train is obliged to keep out of the way of a hand car, or a hand car to keep out of the way of a train." In our view of the case, this is the controlling question. Because, if it be assumed that notice and knowledge of the rear brakeman, respecting the situation of the hand car, was the knowledge of the other members of the train crew, the question in its last analysis is, whether those in charge of the train owed Waymire the duty to warn him that the train was about to be moved backward.

In addition to a general denial, the answer set up the affirmative defenses of contributory negligence and assumed risk. Consideration of the affirmative defenses may be eliminated for the reason that unless Waymire's death resulted, in whole or in part, from the negligence of the employees in charge of train No. 37, the plaintiff cannot recover, and unless these employees owed some duty to Waymire which they failed to discharge, they were not guilty of negligence. As a general rule, the question of negligence is a mixed one of law and fact to be decided by the court when the facts are undisputed or conclusively proved, and to be left to the jury when the facts are disputed and the evidence is conflicting. (Wharton on Law of Negligence, § 420 and to the same effect see Bouvier's Law Dictionary, Rawle's Third Rev., Title "Negligence," 231...