Page images
PDF
EPUB

or the premises of said railway company; and I further agree that I will not claim any wages or compensation for any work that I may do during such time, nor claim to be in the employ of said company nor an employé thereof during such time.

"Witness my hand and seal at Dodge City, State of Kansas, this 4th day of August, 1904. "Elmer Tindall [Seal.] "Signed in presence of H. C. Duncan, Witness."

To this defense the plaintiff demurred, which was sustained, and the defendant brings the cause here for review.

The relation of the parties at the time Elmer Tindall was killed is one of the controlling questions in this controversy. The plaintiff in error contends that under the contract upon which Tindall was permitted to go and remain on its trains he was a mere licensee for his own personal benefit, and by the contract had expressly waived any claim for damages resulting to him in consequence of the negligence of the company's agents, servants, and employés. In determining the relation of parties courts are not bound by the agreements of the parties as to what such relations shall be or to the legal effect of its terms. Notwithstanding such agreements, such whenever the question is properly presented courts will analyze the elemental facts of the agreement and determine therefrom the actual relations of the parties. In Missouri Pacific Ry. Co. v. Ivy, 71 Tex. 409, 9 S. W. 346, 1 L. R. A. 500, 10 Am. St. Rep. 758, which was an action for damages for personal injury sustained by one who was shipping cattle inder an agreement, indorsed on the back of the shipping contract, that the shipper was an employé of the railway company, it was said: "By the agreement indorsed on the back of the contract, he agrees that he is the employé of the company, but that is evidently a fiction to provide for the release of the company from damages for personal injuries occasioned by the negligence of its servants. It is a pretense, a subterfuge, upon which to predicate the discharge of the company for damages in a plausible form. The true relations of the parties cannot be changed by such an agreement. It states a fact which is untrue; the agreement that it is true does not make it so. It amounts to this: Knowing that a contract would be of doubtful validity that absolved the company or limited its liability as a common carrier of passengers, the contract was devised in which the passenger acknowledges himself to be an employé of the company, so as to contract for its limited liability upon such relation, and give it the semblance of legality. If the liability of a common carrier cannot be limited in express terms, and by a direct agreement, it cannot be done upon false or counterfeited relations." Persons capable of contracting are at liberty, inter parties, to make any contract that may to them seem ad

vantageous, provided, however, that such contracts do not attempt to transgress the law or contravene public policy. But, in the exercise of their right to contract, persons are powerless, by contract or otherwise, to conclude one another by agreeing to place upon the terms of their agreements a legal construction different from that which the law places upon them, or a construction prohibited by public policy. Going beyond the mere conclusions stated in the contract, and analyzing the facts, as they appear from the contract itself, for the purpose of determining the actual relations of the parties at the time Tindall was killed, the conclusion is irresistible that Tindall was in the service of the railway company, and, as between him and the company while in the discharge of duties assigned to him, he was entitled to protection from the negligence of the company's servants.

In

The

The contract is adroitly drawn. Its apparent purpose is to relieve the company from liability to Tindall for injuries sustained while working for the company, in consequence of the negligence of the company's agents, servants, or employés. expressing the duties to be performed by Tindall the language is permissive only; but the services which the agreement contemplates that Tindall should perform for the company are sufficient to justify the conclusion that while performing such services he was an employé of the company. railway company was not conducting a free school for the education of freight brakemen, nor was Tindall riding gratuitously on the defendant's train at the time he was killed, but was working for the company. assisting in the operation of the train. Notwithstanding the agreement to the contrary the elemental facts created the relation of master and servant. The compensation of the company for the privileges granted to Tindall was the work to be performed by him as freight brakeman. In California a railroad company is not liable for injuries to an employé in consequence of the negligence of a co-employé, and in Weisser v. Southern Pac. Ry. Co. (Cal. Sup.) 83 Pac. 439, the relation of a railroad company to a student brakeman, who was working for the purpose of qualifying himself for a brakeman, and for no other consideration, was considered. It was urged by the railroad company that the brakeman was an employé. The court said that it was unnecessary, in disposing of the appeal to determine the relation of the parties, but it "has been discussed by counsel, and its determination may be necessary for the purposes of a new trial," and proceeded to pass upon the question, using the following language: "As such 'student brakeman,' he was entirely subject to the orders of defendant, and was required to perform such ordinary duties of brakeman as were allotted to him,

just as fully as if he had been assigned regular employment for a pecuniary compensation by defendant. It is difficult to conceive of any reason why one, situated as these circumstances show plaintiff to have been, should be held to be other than an employé of the defendant, subject to all the obligations imposed by that relation. He was certainly in the service of defendant, regularly engaged in the doing of the defendant's business. The simple fact that he was not to be paid any money for his services cannot affect the question. It was perfectly competent for him to agree to serve an apprenticeship without pecuniary consideration. The important thing is that he voluntarily entered and was engaged in the service of the defendant upon such terms as he had seen fit to agree to. While so engaged in such service, there was no distinction, material to the question under discussion, between his situation and that of the other employés on the train." A similar question was before the federal court in Huntzicker v. Illinois Cent. R. Co., 129 Fed. 548, 64 C. C. A. 78, where a young man wishing employment as flagman, upon applying to the railroad company for such position, was informed that he had not had sufficient experience. He then applied for, and was granted, permission to go upon the trains of the company, and by observation and experience learn what the duties of a flagman were. While so engaged, and upon his own application, he was ordered to appear at the trainmaster's office to be reexamined as to his proficiency. While riding upon a train to the trainmaster's office for such purpose a collision occurred, and he was killed. In determining the relation of the parties the court said: "As there was no controversy over the facts, the question became one of law, and the court performed a duty of its own in deciding it. The agreement between the parties, reduced to its elements, was that the defendant was to furnish the plaintiff the facilities for qualifying himself for the duties of a flagman; that is to say, it was to give him instruction and transportation over its road: not such transportation as is due to a passenger, but such as is ordinarily incident to the operation of freight trains by men in that service. In consideration of this, Fereday was to perform such elementary and simple service as he was capable of under the direction of the conductors of trains." *** “Applying the controlling principles which we have indicated to the present case, it seems clear that Fereday at the time of his death was a servant of the defendant. He was enjoying the privilege for which he served. He was under the control of the defendant, and the company would undoubtedly have been responsible for the manner in which he performed his service; and, what is more impor tant, under the test above stated he had no

interest whatever, other than that which any servant has in the result of his service, in the consequences of the discharge of his duties. We are therefore of opinion that the court did not err in its direction to the jury." In the cases cited there was no contract attempting to determine the relation of the parties. The law, however, determines that question, and it must be held in this case that the relation was that of master and servant.

It is also contended that the waiver by the deceased of any claim for damages for injuries in consequence of the negligence of the company, its employés, agents, or servants, is a complete defense in this action. With this we do not agree. Our statute provides that: "Every railroad company organized or doing business in this state shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employés to any person sustaining such damage." Gen. St. 1901, § 5858. The state has an interest in the lives, health, and safety of its citizens, and whenever a business, although lawful in itself, is dangerous to the lives or injurious to the health of the employés engaged in conducting such business, it becomes a question of public concern and the state may intervene in the interest of public welfare. We have many such statutes enacted in the interest, and for the protection, of different classes of citizens. The owner or lessee of coal mines, worked by means of shafts, is required to maintain escapement and ventilating shafts in accordance with certain prescribed rules, and is prohibited from having more than five pounds of powder in any such mine at one time. The protection thus provided by the state for the safety of its citizens is a matter of public concern and cannot be contracted away by the individual. In many other states we find instances where the state has intervened for the protection of its citizens who are engaged in business hazardous to health. In Utah a statute was enacted prohibiting a certain class of minors from laboring more than 8 hours in each 24. A contract was made between the employer and one of his employés that the employé should work 12 hours in each 24. An action was brought by the employé to recover for the time so worked over the 8 hours. In passing on the question in Short v. Mining Co., 20 Utah, 20, 57 Pac. 720. 45 L. R. A. 603, the court said: "We are further of the opinion that the right to waive this legislative protection is without the power of the employé. This law is in the nature of a state police regulation. Its object is the good of the public as well as of the individual. The state in this matter has intervened in its own behalf. This protection to the state cannot at will be waived

by any individual, an integral part thereof. The fact that the individual is willing to waive his protection cannot avail, the public good is entitled to protection and consideration, and if in order to effectuate that object there must be enforced protection to the individual, such individual must submit to such enforced protection for the public good." A similar question arose in Rhode Island, in Re Ten Hour Law, 24 R. I. 603, 54 Atl. 602, 61 L. R. A. 612. The question arose under a law limiting the hours of the labor of an employé on a street car. Two questions were submitted by the Governor to the judges of the Supreme Court: First, Is the law constitutional? Second, if constitutional, can it be waived by contract? The first was answered in the affirmative, and on the second question it was held that the purpose of the law was to limit the continuous service of such employés in the interest of public safety, and that public safety cannot be made to depend on private contract. In considering a similar question in Holden v. Hardy, 169 U. S. 366, 397, 18 Sup. Ct. 383, 390, 42 L. Ed. 780, the court said: "But the fact that both parties are of full age and competent to contract does not necessarily deprive the state of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. "The state still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer.'" For the reasons suggested, a contract by one entering the service of a railroad company waiving his right of action for damages which he may receive in consequence of the negligence of its agents, servants, or employés is void.

The judgment of the trial court is affirmed, and the cause is remanded, with instructions to proceed with the cause.

[blocks in formation]

the clerk to file a similar suit by such Assistant Attorney General need not be presented to that court, but the Supreme Court will assume original jurisdiction.

Original proceedings in mandamus by the state of Kansas, on the relation of C. C. Coleman, Attorney General, against C. E. Woodbury, clerk of the district court of Crawford county. Writ granted.

C. C. Coleman, Atty. Gen., and F. S. Jackson, Asst. Atty. Gen., for plaintiff. O. T. Boaz, B. S. Gaitskill, and J. J. Campbell, for defendant.

PER CURIAM. This is an original proceeding in mandamus, brought by the state of Kansas, upon the relation of C. C. Coleman. Attorney General of the state, asking for an order commanding C. E. Woodbury, clerk of the district court of Crawford county, to file papers in an injunction suit. The application for the writ states that George H. Stuessi, as Assistant Attorney General of Crawford county, on February 17, 1906, presented to C. E. Woodbury, clerk of the district court of Crawford county, his verified petition praying for a permanent injunction against Peter Esch and Herbert Mousney, restraining them from maintaining a place where intoxicating liquors were sold contrary to law, and also a præcipe for summons, and his application in proper form for a temporary injunction on behalf of the state of Kansas against Peter Esch and Herbert Mousney, enjoining them from maintaining a place where intoxicating liquors were sold in violation of law, during the pendency of the action for a permanent injunction, and requested that C. E. Woodbury, as clerk of the district court of Crawford county, receive and file the papers and issue a summons to the defendants therein, and that C. E. Woodbury, in violation of his duty as clerk, refused to file the papers and refused to permit the Assistant Attorney General for Crawford county to commence such action and to institute such proceedings. The writ was allowed, and C. E. Woodbury was commanded to file the papers so presented and issue the summons as prayed for, or show cause why he should not comply with such order, on or before a day named in the writ. Instead of complying with the order, C. E. Woodbury made a return upon the writ, stating the following reasons why he had not so complied: That a similar case had been instituted in the district court of Crawford county by Stuessi as Assistant Attorney General of Crawford county, and upon application made to the district court it was held that Stuessi, as Assistant Attorney General of Crawford county, had no authority to institute such proceedings, and the cause was dismissed; and that this judgment was not appealed from or reversed. This he concludes is a justification for his refusal.

This defense or reason for his noncompllance with the order of this court appears

to have been abandoned in this court by his counsel, whose only contention is that this court had no jurisdiction to issue the writ of mandamus. The contention is that such application must be presented to the district court. This is generally correct, and, unless some reason is given why the application had not been made to the district court, this court will not act. The return of the defendant to the writ, however, furnished ample reasons why it would have been futile to have applied to the judge of the district court. If the facts stated in the,return are true, it would have been a useless waste of time and energy to apply to the district court. This is never required. That court had passed upon the right or authority of the Assistant Attorney General to institute such proceedings and had held that no such authority was vested in him. Under a showing of such facts, this court may act in the first instance. This being, the only question presented, the peremptory writ is allowed.

It is therefore ordered that C. E. Woodbury, as such clerk, upon presentation, receive and file the petition, præcipe for summons, and issue the summons thereunder.

(74 Kan. 487)

MISSOURI, K. & T. RY. CO. et al. v. JENKINS.

(Supreme Court of Kansas. Nov. 10, 1906.) RAILROADS ACCIDENT AT CROSSING EVIDENCE.

Upon the facts of this case, it is held a traveler upon a highway should have stopped to look before driving his team upon a railway crossing.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41. Railroads, §§ 1043-1070.]

(Syllabus by the Court.)

Error from District Court, Miami County; W. H. Sheldon, Judge.

Action by F. F. Jenkins against the Missouri, Kansas & Texas Railway Company and others. Judgment for plaintiff, and defendants bring error. Reversed.

John Madden, W. W. Brown and J. E. Maxwell, for plaintiffs in error. Frank M. Sheridan, for defendant in error.

BURCH, J. The plaintiff sued for the value of a team of horses, harness and wagon injured at a highway crossing over the defendant's tracks. There is no There is no dispute about the material facts, and for the purposes of the decision, it may be conceded the railway company was negligent. The accident happened upon a main track running north and south. West of the main track 21 feet and 6 inches lay a side track filled with box cars which encroached upon both sides of the highway leaving a space some 20 feet in width for passage. The driver of the team approached the crossing from the west. His last look for a train before the instant the accident occurred was taken at a point 120 to 160 feet distant from the side track.

From there to the side track his view of both tracks toward the south was obstructed, and the cars on the side track continued to obstruct his view of the main track in that direction. He did not stand in the forward part of his wagon box where he could more quickly have seen, but, without reason, so far as the evidence discloses, took a position over the rear axle 18 feet from his horses' heads. As the team crossed the side track, the near horse shied slightly at the box car on the north, and drew his momentary attention in that direction. The team, however, was gentle, and at all times under control. When he looked to the south a north-bound train was upon him. He said he was listening and heard no train, that he knew a train was likely to pass at any time, and that he was familiar with the crossing and its surroundings. The jury found specially that he knew of the obstructions, and knew they cut off his view to the south; that he could have seen the danger of a collision before it took place had he stopped to look before driving upon the main track, and that he could have avoided the collision had he stopped to look and listen, but that he did not do so. The jury also found that the employés of the railway company in charge of the train discovered the driver's peril too late to avert the injury. Notwithstanding these findings, a verdict was returned for the plaintiff.

A series of parallel railroad tracks constitutes a series of separate dangers to a traveler upon a highway intersecting them. Peril succeeds peril until all are crossed, and caution must be exercised in the presence of each one. To look and listen once for all is not enough if there be opportunity to make further observations as the journey proceeds. Even though the view be obstructed until the first track is reached, if the second can then be scanned for danger, ordinary care requires that the occasion be improved. Ordinary care further requires that a man driving a team across a railroad track, or a series of railroad tracks, shall not deprive himself of the opportunity of a prompt view by unnecessarily lagging behind while the team proceeds unguarded into danger. He must be vigilant in trying to see. The findings of the jury in this case make it obvious that if the driver had stood in the forward part of his wagon he would have seen the train and would have avoided the collision. Instead of this, he projected the team ahead of him almost the entire distance across a place of safety, and into danger before the line of his vision cleared the obstruction to the south. Situated as he was, the jury finds that if instead of driving on he had stopped to look he could have seen the train and could have prevented disaster. Having disabled himself from making timely use of his sense of sight, he should have offset the voluntary handicap by stopping to look. The fact that the driver was listening as he drove

along does not exculpate him. When, in addition to listening, he could have looked and saved himself, he should not have abused the opportunity. Whenever there is a field for the exercise of both sight and hearing both faculties must be employed. The facts found specially by the jury require consideration in the light of other facts not found, but merely admitted by the plaintiff's testimony. Therefore judgment cannot be ordered upon the findings.

The judgment of the district court is reversed, and the cause remanded. All the Justices concurring.

(74 Kan. 898)

STATE v. CONNOR. (Supreme Court of Kansas. Nov. 10, 1906.) 1. CRIMINAL LAW-TRIAL-ORDER OF PROOFDISCRETION.

In a trial of a criminal prosecution, the order of proof is a matter of discretion with the court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1609.]

2. LARCENY - SUFFICIENCY OF EVIDENCE — IDENTIFICATION.

In a prosecution for larceny. identification of defendant by one witness was sufficient to carry the case to the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Larceny, § 169.]

Appeal from District Court, Rush County; Chas. E. Lobdell, Judge.

Guy Connor was convicted of larceny, and appeals. Affirmed.

D. A. Banta, for appellant. C. C. Coleman, Atty. Gen., and J. W. McCormick, for the State.

PER CURIAM. Appellant was convicted of the larceny of wheat, and appeals.

The order of proof was a matter of discretion with the court, which was not abused in this case. The conclusions of the witness Werhahn, identifying the wheat, were not objected to at the time. Facts, too, were stated which formed a chain of circumsances rendering the proof of value following competent. Identification of appellant by one witness was sufficient to carry the case to the jury. It was not improper for the witness Clare to give his version of his talk with the county attorney, and the form in which it was given was not materially prejudicial. The difference between the weight of evidence read to the jury by the stenographer and evidence which in the presence of the jury he read to himself and then stated to the jury is not sufficient to work a reversal of the case.

The word "should," as used in the instructions to the jury, conveyed the sense of duty and obligation, and could not have been misunderstood. The evidence in the case is suf ficient to uphold the verdict. Section 293 of the Code of Criminal Procedure reads: "On an appeal the court must give judgment with

[blocks in formation]

Where an information charges, in one count, robbery in the first degree and, in describing the assault, charges facts which constitute the crime of an assault with a deadly weapon with intent to rob, such information is not by reason thereof bad for duplicity.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 379.] (Syllabus by the Court.)

Appeal from District Court, Riley County: Sam Kimble, Judge.

C. G. Parkhurst was convicted of robbery, and appeals. Affirmed.

Robert J. Brock and Alvin R. Springer, for appellant. C. C. Coleman, Atty. Gen., and A. M. Story (C. B. Daughters, of counsel), for the State.

SMITH, J. Our attention is first challenged to the information, and it is urged that the information is bad for duplicity in that it charges two felonies in one count, one of an assault with a deadly weapon with intent to commit robbery under section 2023 of the Crimes and Punishments Act (Gen. St. 1901), the other, robbery in the first degree under section, 2064, of that act. The objection is not well taken. An assault with intent to rob might be regarded as the first step, and an assault with an attempt to rob as the second step toward the completion of the crime of robbery in the first degree. They are essentially crimes of the same character if not logically grades of the same crime. Where only the higher degree of crime is specifically charged, an information is not bad for the reason that it charges facts which would, if established. justify a conviction for another crime of like nature, but of a lower grade, especially where such facts are ingredients of each crime. State v. Hodges, 45 Kan. 389; 26 Pac. 676. In complaining that the money. alleged to have been taken, was not described with sufficient certainty, the appellant asks us to assume that the money said to have been in the possession of the county attorney at the time he drew the information was the identical money taken. The testimony of the appellant and his whole contention is that there was no money taken. He does not seem to have been prejudiced. The alleged variance between a "gold filled watch" and a "gold watch" is fully answered adversely to appellant in State v. Alexander, 66 Kan. 726, 72 Pac. 227. We

« PreviousContinue »