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On July 3, 1880, Jackson S. Jones filed his petition against the Solomon Railroad Company, as follows, court and title omitted:
“The said plaintiff complains of the Solomon Railroad Company, defendant herein, for that the said defendant, being a railway corporation organized under the laws of said state before and at the time of the committing of the grievance hereinafter mentioned, and then was the owner of a certain railroad running from Solomon City in said state to Beloit therein, and was the owner of a certain hand car used on the track of said railroad in propelling materials for and men engaged in the construction of and making repairs upon said track; that the said plaintiff, on the nineteenth day of November, A. D. 1879, at Beloit aforesaid, at the time of the committing of the said grievances, was in the employment of the said defendant as a workman, engaged in the construction of and making repairs upon said track; and that it then and there became and was the duty of the said defendant to procure a good, safe, and secure hand car to move, propel, and carry this plaintiff from place to place on the line of said railroad in the performance of his duty in and about said employment, and to propel and carry the tools and materials used by said plaintiff in the construction of and making repairs upon said track, yet the said defendant, not regarding its duty in that behalf, conducted itself so carelessly, negligently, and unskillfully that by and through the carelessness, negligence, and default of the said defendant and its servants in providing, using, and suffering to be used an unsafe, defective, and insecure land car for the purposes aforesaid, and for want of due care and attention to its duty in that behalf, on the said nineteenth day of November, 1879, aforesaid, and while the said hand car was in the use and service of the said defendant upon said railroad, and while the said plaintiff was on the same, acting in the capacity and employment aforesaid for the said defendant, the handle of said hand car, by reason of the unsafeness, defectiveness, and insecurity thereof, broke, whereby this plaintiff was thrown violently therefrom and in front thereof while the said hand car was in motion, and the same passed over the prostrate body of this plaintiff, greatly injuring and wounding him, breaking one of his legs and greatly injuring the other, as well as bruising and injuring him in the back, hips and in divers places upon his body, and in consequence thereof this plaintiff became sick and permanently disabled, and has so remained ever since that day, and was put to great expense in and about endeavoring to cure said injuries, and also during all that time was unable, and still is unable, to perform any work or labor of any kind, and has been ever since and still is prevented from attending to his ordinary business, and has been and now is thereby permanently deprived of the use of his members to his great damage, to-wit, to the damage of said plaintiff in the sum of ten thousand dollars. Wherefore, he prays judgment against the said defendant for the sum of ten thousand dollars, his damages so sustained as aforesaid, and the costs of this suit
JACKSON S. JONES, “A. H. ELLIS, Plaintiff's Attorney."
On April 30, 1881, the defendant filed an answer containing a general denial. At the December term of court for 1881 the case was tried before the court, with a jury, which resulted in a verdict and judgment for plaintiff for $4,250. The case was taken upon error to the supreme court of the state by the Solomon Railroad Company. At the July term of that court for 1883 the judgment was reversed, and the cause remanded for a new trial. The case was again tried at the March term of court for 1884 before the court with a jury.
The jury found in favor of plaintiff, and assessed his damages at $5,750. They also made the following special findings :
(1) Was the Solomon Railroad Company the owner of the hand car mentioned in plaintiff's petition and upon which he was riding and working when he received the injury complained of? Answer. No, to first interrogatory; to second, but furnished it.
(2) Did not the Kansas Pacific Railway Company own and furnish said car to be used in the construction of the road? A. We believe the K. P. owned it, but the defendant furnished it.
(3) Was not the hand car at the time plaintiff was injured, and on the day previous thereto, operated and controlled and under the direction of Patrick Cregan? A. Yes.
(4) Did not P. O'Riley have the direction and control of Cregan and the men working under him in the construction of the railroad from the time plaintiff was employed upon such construction and until he was injured ? A. Yes.
(5) Did P. O'Riley employ the plaintiff to work in the construction of the Solomon Railroad some tiine in the month of September, 1879, and did the plaintiff work under said employment? A. Yes.
(6) Did defendant company enter into the contract in writing with J. P. Uslier in evidence in this case for the construction of its railroad at the date of said contract? A. Yes.
(7) Did not J. P. Usher assign the contract described in the preceding interrogatory to D. M. Edigerton? A. Yes.
(8) Did the Solomon Railroad Company ever make any other arrangement for the construction of its railroad than as provided in the contract mentioned in the last preceding interrogatory? If so, state what.
A. The evidence does not show that it did.
(9) Did not D. M. Edgerton, as assignee of the contract described in the preceding interrogatories, engage the Kansas Pacific Railway Company to construci the said railroad from Minneapolis to Beloit? A. No evidence to show that he did.
(10) Did not the Kansas Pacific Railway Company undertake the construction of said railroad from Minneapolis to Beloit, and did not said company actually construct said railroad during the year 1879? A. No.
(11) Did not the Kansas Pacific Railway Company employ P. O’Riley, Pat Cregan, E. C. Smeed, Samuel Mallison, and others to superintend the construction of said railroad between Minneapolis and Beloit? A. They did send such men to report to Edgerton.
(12) Did not P. O'Riley employ the plaintiff, Jones, sometime in September for the Kansas Pacific Railway Company, to labor in the construction of said railroad, and did not plaintiff work under said employment until the time he was injured ? A. No.
(13) Had P. O'Riley any authority to employ plaintiff for and on account of the Solomon Railroad Company? And if you say yea, state how, when, and from whom he derived such authority. 8. (1) Yes. (2) From Edgerton. (3) In September.
(14) In the construction of said railroad between Minneapolis and Beloit was not D. M Edgerton present upon the work, or in its vicinity, until the road was constructed to the north county line of Ottawa county sometime in the month of October? A. Yes.
(15) Was not D. M. Edgerton, during the time he was upon the work west of Minneapolis, engaged by the Kansas Pacific Railway Company to render his services in behalf of said Kansas Pacific Railway Company in its contruction of the work, and did not the Kansas Pacific Railway Company pay him for such work ? A. We believe from the evidence they did not.
(16) Did not D. M. Edgerton agree with the Kansas Pacific Railway Company that if it would undertake to construct the road between Minneapolis and Beloit he would turn over and pay, or cause to be paid, to such company the compensation for such construction that was to be given by the Solomon Railroad Company in accordance with his contract with that company? A. We do not know by the evidence what the arrangement was.
(17) After the road was constructed to Beloit was not the Kansas Pacific Railway Company paid for its outlay in the construction the compensation remaining to be paid under the contract with John P. Usher and assigned to Edgerton? A. We do not know.
(18) Did not the plaintiff while he was employed upon the work receive pay for his labor from the Kansas Pacific Railway Company? A. From the evidence he did not.
(19) Did he not execute his receipt in evidence to the Kansas Pacific Railway Company for the money due him for his work in September and October? A. They were Kansas Pacific forms, but not necessarily K. P. receipts.
(20) Withdrawn by order of court at request of defendant, because it was admitted on the production of the receipt set out on page 399 that plaintiff did not receive a pay-check for his services for October, 1879.
(21) Did not the Kansas Pacific Railway Company tender him its pay-checks as and for all unpaid services which he had performed upon the road in the month of November, and did he not decline to accept said checks upon the ground that the company owed him more than the pay-checks called for ? A. He was tendered two forms of K. P. checks by a Solomon Railroad Company agent, and he did decline to take them.
(22) Was not the railroad upon which the plaintiff was injured, and the rolling stock, including the hand car upon which plaintiff was injured, in the control and possession of the Kansas Pacific Railway Company on the day that plaintiff was injured ? A. We find from the evidence that it was under the control of the Solomon Railroad Company.
(23) Did the Solomon Railroad Company have in its possession or control the hand car upon which the plaintiff was injured at any time? And if so, state what person or persons had the control and operation of said hand car for the Solomon Railroad Company. A. To first part, yes; to second, under the immediate control of Pat Cregan.
(24) Did the Solomon Railroad Company ever own, possess, or have any hand car or other rolling stock whatever on its railroad? If so, what? We find that the Solomon Railroad Company controlled all the rolling stock used in the construction of its road.
(25) Did not the Kansas Pacific Railway Company employ and pay Henry Chadá, Samuel Burkholder, and Thomas McGuire to work on said railroad, and did not said Chadd and Burkholder receipt upon the pay-roll of the Kansas Pacific Railway Company for their pay? A. No; but we find from the evidence that the said Burkholder and Chadd did sign the K. P. form of paychecks and pay-roll.
(26) Was not A. L. McLeod in the service of the Kansas Pacific Railway Company at and before the injury to plaintiff ? A. No, when he was on this line we find he was working for the Solomon R. R. Co.
(27) Was A. L. McLeod ever in the service of the Solomon Railroad Company. If so, state who employed him, and when, and where? A. (1) Yes. (2) Employed by Solomon Railroad Company when it was constructing its road in 1879 along the line of its road.
(28) Did not A. L. McLeod, at and before the injury to plaintiff, as roadmaster for the Kansas Pacific Railway Company, have charge of the maintenance of said Solomon Railroad and the completion of the surfacing thereof, and had not such duty been imposed upon him since the tenth day of November, 1879? A. Not as roadmaster for the Kansas Pacific.
(29) Was not P. O'Riley, and P, Cregan as foreman, subject to the control of said A. L. McLeod after November 10, 1879, in directing the work upon said railroad, either in maintenance or in surfacing? A. Yes.
(30) Was not the hand car upon which plaintiff was injured constructed at the car-shops of the Kansas Pacific Railway Company at Armstrong by that company, and was it not of the usual and uniform pattern of hand cars of that company, and of similar material, and had not such hand cars before said accident been found in all respects proper and safe for the service in which they were employed? A. (1) Yes. (2) We believe them to be reasonably safe up to the time of the collision.
(31) Was there a collision of the hand car in question the day before the accident to plaintiff? And if so, in such collision did the handle which afterwards broke with plaintiff touch any part of the car with which the car in question collided ? A. There was a collision. The handle did not touch the car with which it collided.
(32) When the collision occurred on the day before was not Pat Cregan present with quite a large body of laborers under his control, and were not some of them with Cregan experienced railroad men, and did either of them suspect or have reason to suspect that the handle which afterwards broke with the plaintiff was in any way injured in such collision? A. (1) Yes. (2) Don't know. (3) Yes, had reason to suspect.
(33) How many men were at work with Cregan at the time of the collision ? A. Forty to forty-five.
(34) On the day of the collision did not Cregan have and use two hand cars and a push car with which his men and tools were transported to and from their works? A. According to the evidence the cars were all out.
(35) Were the three cars loaded to their capacity with men and tools at the time of the collision, and were not Chadd and McGuire riding upon the colliding car? A. One to its capacity, the other empty on the track; we think they were.
(36) Did not Chadd have hold of one of the handles of that car at the time of the collision ? A. Don't know.
(37) From the collision had Chadd, McGuire, or Cregan any reason to suppose that either of the lever handles were injured or weakened by the collision? A. Yes; had reason to suspect.
(38) Was not the car complained of, after the collision, operated back to Beloit a mile or more on an up-grade by both lever handles ? A. Yes.
(39) Was not the colliding car operated back to Beloit on the night after the collision at the same speed as the other hand cars? A. Yes; or iearly so.
(40) Did not the two hand cars and push car carry back to Beloit the night of the collision all the men and tools that were brought out on them in the morning? A. Yes; with the injured car lightly loaded.
(42) Did the handle of the hand car complained of by plaintiff break within the band of iron which enveloped it? If so, how far within? A. Yes, about one-eighth to one-fourth inch.
(43) Was not the fracture of the lever handle in plaintiff's hand a sqnare break, and not oblique at all? A. Yes; nearly so.
(44) Was not the fracture in the handle a quarter of an inch or more within the iron band which held the handle? A. No; one-eighth to one-fourth inch.
(45) In the operation of the hand car after the collision to Beloit, and on its return next morning, to the time of the accident, was there any indication or appearance that the handle which broke with plaintiff was injured or defective? A. No evidence.
(46) At the time of the breaking of the handle by Jones did he apply increased power to the handle for the purpose of propelling the car over the crossing which he then supposed was in some measure obstructed by frozen earth: A. Yes;. a little.
The defendant also submitted the following question, numbered 41:
“Was not the hand car from which plaintiff fell and was injured used continuously, without any repair, upon the railroad until the surfacing thereof was completed, and then removed to McPherson Railroad, and there used for the purpose it was used before it was broken?”
This question the court refused to submit to the jury for answer. The defendant excepted. On March 29, 1884, the defendant filed a motion for a new trial, which motion was overruled. Thereupon the court rendered judgment upon the verdict in favor of the plaintiff against the defendant for $5,750, together with all costs of suit. The defendant excepted, and brings the case here.
J. P. Usher and Charles Monroe, for plaintiff in error.
Horton, C. J. This case was before us at the July term for 1883. 30 Kan. 601; 2 Pac. Rep. 657. Since then a new trial has been had, resulting in a verdict and judgment for $5,750 and costs. This proceeding has been brought to reverse that judgment. The contention of the railroad company has always been that it had the right to contract for the construction of its road from Solomon City to Beloit; that it did so contract; and that, by the law, it is not liable for the injury sustained by Jones, and that if he received injuries by the culpable negligence of any person or company, the Solomon Railroad Company is not responsible therefor. All the evidence given on the part of plaintiff below upon the former trial seems to have been again presented at the last trial, and upon that trial additional testimony was introduced by the railroad company tending to establish that D. M. Edgerton, the president of the Solomon Railroad Company, constructed the road upon his own account from Solomon City to Minneapolis, and that the Kansas Pacific Railway Company constructed the road from Minneapolis to Beloit. We are satisfied with the law as previously declared by this court upon all the questions involved in the former presentation of this case, and several of the same questions therein decided are again elaborately argued. Notwithstanding the additional or further evidence on the part of the Solomon Railroad Company at the late trial, we cannot say it was so conclusive as to overturn the verdict. The jury were the exclusive judges of the weight of the evidence and of the credibility of the witnesses; and, as we said in the former opinion, although the actual facts of the case tend to show that the “Kansas Pacific was the real builder and owner of the road," sufficient evidence was before the jury to authorize the verdict. Railroad Co. v. Jones, 30 Kan. 601; S. C. 2 Pac. Rep. 657.
Deeming it useless to again discuss the questions of law settled in the former decision, and now presented for re-examination, we shall notice only the important matters argued, which were not passed upon when the case was here before.
It is urged that as the jury found the Solomon Railroad Company