St. Louis, Fort Scott & Wichita Railroad v. Irwin

*706 The opinion of the court was delivered by Johnston, J.:

1. Track and bridges; duty of company.

It is earnestly contended by the plaintiff in error that the evidence is insufficient to sustain the finding that , the railroad company was negligent in the construction and maintenance of the bridge which occasioned the injury; and that even if the company was negligent, the testimony shows that at the time of the accident Irwin was not exercising that prudence and care which was required of him, and hence ought not to recover. The testimony shows that the bridge in question is built over the Walnut river, about one-half mile from the'station at El Dorado. It was so constructed that the top beams were sufficiently high to permit a person standing on the center of the top of a box car or caboose to pass through without colliding with these timbers, but there were braces, extending from the posts of the bridge to the top beams, which were only about four feet above the outer edge of the top of such cars. A person of ordinary height standing in the center of a car could pass through the bridge with safety, but was in danger of being swept from the cars if he stepped a foot or two from the center. Irwin was the conductor of a freight train, and was standing on the top of the caboose, at the side of the cupola, when he was struck by one of these overhead braces. The brace was so low that it struck him below the shoulders, and, according to the testimony of one witness, it was only three feet and nine inches above the outer edge of the roof of the caboose. It was the duty of the railroad company to use ordinary care in providing tracks and bridges that would be reasonably safe for its employés in disc h arging the duties they were called on to perform. Brakemen and conductors of freight trains are frequently required to be on the top of the cars, both night and day. The hazards of such positions are great, and the duty of the company required that its employés®should not be subjected to unnecessary perils from structures over and along the track which, by proper diligence on the part of the company, might be changed or removed. The necessity for a contrivance as *707 dangerous as the overhead structure of this bridge was, is not apparent. Indeed, it seems to have been otherwise planned, but was botched in the construction. E. S. Farnsworth, a witness for the company, and the engineer who furnished the plan for the bridge, stated that it was intended to be a standard Howe truss bridge in every particular, and that it was constructed of the usual height aud width, and that the braces were a necessary part of the bridge, and that it was customary to put them in bridges in the same position and place as they were placed in the bridge at El Dorado. However, he stated that if the bridge was built according to the plans, he could not conceive how an employé on the caboose of a train could be struck by one of these braces; and he further stated that it would be more than six feet from the outer top edge of an ordinary caboose to the braces in the bridge. F. W. Tanner, the general foreman of bridges for the railroad company, testified that he had had fifteen years’ experience in building and constructing railroad bridges. He was asked: “Could these braces in a bridge properly constructed with due regard to the safety of employés be low enough to strike a man of ordinary size on top of a car of ordinary height and width ?” He answered : “They should not, providing the car was on the track and passing through the bridge as it should do.” James Standard, an assistant superintendent of bridges for the railroad company, of nineteen years’ experience in the building and construction of railroad bridges, stated that a railroad bridge should be so constructed that there would be no danger of a man striking the braces on any part of an ordinary car. This testimony would indicate that it was neither necessary nor intended in the first instance that the bridge should be so low as to be dangerous for employés to stand erect upon the top of any of the ordinary cars. It cannot be doubted that these facts were sufficient to go to the jury on the unsafe and unsuitable character of the bridge, and also sufficient to sustain the finding of the company’s negligence in so constructing and *708 maintaining it. With reference to such structures, Mr. Beach, in his work on Contributory Negligence, p. 364, says:

“If the roof or overhead structure of the bridge is so low that it will strike a brakeman standing erect on the top of his train, it is an essentially murderous contrivance, and it is not creditable to our jurisprudence that such buildings are not declared a nuisance. There is nothing in the reports worse than the cases that sustain the railway corporations in building and maintaining these man-traps.”

The same question was before the supreme court of Indiana, where a brakeman was swept from the top of a freight train by a low bridge, and severely injured. He had no knowledge that the bridge was low, or that it would interfere with the performance of his duty on top of the train while passing through. It was there urged that the defect, if any, was open and obvious, the dangerous character of which he had opportunity to ascertain, and the risk of which he assumed. The court ruled that it was the duty of the railroad company to construct and maintain its roadway and overhead structures in such a condition that an employé can perform all the duties required of him with reasonable safety; and as the bridge was insufficient in height, of which fact the employé had no knowledge, the injury was the result of the company’s negligence, and for which the employé was entitled to recover. The court referred to the cases relied on by the railroad company in the present case, but refused to follow them. (B. O. & C. Rld. Co. v. Rowan, 104 Ind. 88 ; same case, 23 Am. & Eng. Rld. Cases, 390; same case, 3 N. E. Rep. 627.)

C. & N. W. Rld. Co. v. Swett, Adm’r, 45 Ill. 197 , was an action to recover damages for causing the death of a fireman. The train on which he was working was precipitated through a bridge which was defectively constructed and maintained, and he was immediately killed. The court, in speaking of the duty of the company, and the peril which the employé assumed when he entered its service, said:

“The peril consisted in the defective construction of the road and its appurtenances, its culverts and bridges, which the fireman could know nothing about, and which he could *709 not have discovered by the exercise of ordinary precaution and prudence; indeed, he was not required to know anything about that; the implied undertaking of his employers, that the road and culverts and bridges were properly constructed and safe for the passage of trains, was sufficient for him. He embarked in the service on the faith that it was a properly constructed road, and that his superiors were in the exercise of all the diligence necessary to keep it in good repair. . . . There is no rule better settled than this, that it is the duty of railroad companies to keep their road and works, and all portions of the track, in such repair and so watched and tended as to insure the safety of all who may lawfully be upon them, whether passengers, or servants, or others. They are bound to furnish a safe road, and sufficient and safe machinery and cars. Por their failure in this, and their employés not knowing the defects, and not contracting with express reference to them, the companies must be held liable for such injuries as their employés may suffer thereby.”

*711

2 Employe-hazards-extent of knowledge

3 Defect, known to company unknown to liability”

*712 , . .. 4. Ordinary care findi'ngfñot ciistui ea.

*709 The same doctrine was announced in Ill. Cent. Rld. Co. v. Welch, 52 Ill. 183 , where the plaintiff was injured while in the discharge of his duties as brakeman of a freight train, by an awning projecting from a station house to a dangerous position, and which knocked him from the top of a car while engaged in the discharge of his duty. It was held that this was such negligence as made the company liable for the damages sustained. C. & I. Rld. Co. v. Russell, 91 Ill. 298 , was a case where a railroad company permitted a telegraph pole to stand for a period of three years so near to a side track that it was within eighteen inches of passing freight trains, so that a brakeman in descending from the top of a freight car while in motion, in the performance of his duty, came in collision with the pole, and was thrown from the car and killed. It was held to be culpable negligence in the railroad company, to permit, for so long a time, such an obstruction to be in such close proximity to its track. C. & A. Rld. Co. v. Johnson, 4 N. E. Rep. 381, was an action to recover for a personal injury suffered by a brakeman on a freight train while passing through a covered bridge. In affirming a judgment in favor of the brakeman, the court approved of an instruction to the effect that where a railroad company *710 constructs a bridge along the line of its road, it should build it of sufficient height so that persons employed by the railroad company as brakemen, and who are required to go upon the top of freight cars in discharging their duty as brakemen, while going through a bridge may pass through and under the bridge without danger to their personal safety ; and that the law does not require of a brakeman that he should absolutely know all the defects of construction and all the obstructions there may be along the line of the road. In Clark, Adm’x, v. St. P. & S. C. Rld. Co., 28 Minn. 128 , a brakeman was killed by striking an awning which projected over a side track in such a position that its lowest projection would strike a man of ordinary height on the head, while it would not come in contact with a man standing eight inches or a foot aside from the center of the car. The brakeman was struck by the corner of the awning while engaged in the performance of his duty in moving freight cars upon the side track. The court held that the railroad company failed in its duty to the brakeman, and that if the brakeman had no knowledge of the peril the company would be responsible for the injury. (See also Greenleaf v. D. & S. C. Rld. Co., 33 Iowa, 52 ; Allen v. B. C. R. & N. R. Co., 57 id. 623; Dorsey v. Construction Co., 42 Wis. 583 ; Walsh v. Oregon Rly. Co., 10 Ore. 250 ; H. & T. Rly. Co. v. Oram, 49 Tex. 342 .) The doctrines of these authorities more clearly accord with our views than do some of those cited by the plaintiff in error. Most of the latter, however, were disposed of on the theory that the employé had actual knowledge of the peril which he encountered. In this case the jury have said, and not without testimony, that Irwin had no knowledge nor opportunity to know of the dangerous character of the bridge. It is true that he had run over the road and through the bridge daily for three months preceding the accident. He knew of the existence of the bridge, and that it was constructed with overhead timbers, but it does not necessarily follow that he was acquainted with the proximity of the braces to the top of the caboose or cars. When he entered *711 sel'vice of the company he assumed the ordinary risks incident to the service; and if he enters or continues in the service with a knowledge of the risk or danger, and without objection, he must abide the consequences. (Jackson v. K. C. L. & S. K. Rld. Co., 31 Kas. 761 ; K. P. Rly. Co. v. Peavey, 34 id. 472; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 id. 129.) The law, however, does not require that au employé shall know of all defects or obstructions that may exist on the road, or in the service m which he is engaged; and it cannot be said that the peril in this case was so obvious and patent that Irwin must have known it. He had a right to assume that the company had done its duty and placed its track in such a condition that he could perform his duties with reasonable safety. The fact that a portion of the bridge was sufficiently high to clear a man’s head while standing on top of a car, and other parts were not, made the bridge all the more deceptive and dangerous. Irwin, being a •conductor, was not called to the top of the train so frequently ns brakemen were, and hence would be less likely to notice the lowness of the timbers in the bridge. He testified that he supposed the bridge was sufficiently high so that it would be safe to stand on any part of the car. Several brakemen and others who passed through the bridge stated that they could not say from looking at the bridge that the braces were so low as to strike or injure one who was on top of a train. Men of experience say that it is a very difficult matter to tell exactly how high an object is above a moving train. The smoke of the engine, and the side or swaying motion of the cars, render it hard to see and comprehend the proximity of the overhead timbers of a bridge, and this is very well shown by the widely-differing statements of the witnesses respecting the height of the braces in question. It does not appear that Irwin had been on top of the cars while passing through the bridge more than once before the time of the accident, and he says that he knows of no other bridge on the road with braces so low as they are in this one. The plaintiff had unloaded *712 freight from his train at the station at El Dorado, and in accordance with the directions of the train master had backed down half a mile in order to make a run over a high grade,, and over the crossing of the Atchison, Topeka & Santa Fé railroad, which was a few yards beyond the station. A train on that road was approaching the crossing, and Irwin sent one of his brakemen to flag the crossing, while he ran back over the cars of his train to the caboose. He remained on top of the caboose to watch the Santa Fé train in order to give the necessary signal and avoid a collision. It seems that on the previous day his train had almost collided with the Santa Fé train at the same crossing. It is said that Irwin might have required a brakeman to perform the duty on top of the caboose instead of going there himself; but it appears that his- action in that respect was not outside of the scope of his-duties. Under all the testimony, we cannot say that the danger was so open and obvious that Irwi n knew or should have known of it; nor can we say that he was guilty of contributory negligence. Whether he acted with ord in ary is a mixed question of law and fact which was proper for the determination of the jury,, taking into consideration all the facts and circumstances. The jury has passed upon the question on competent testimony,, and we are unable to say that its finding is. unwarranted. (Huddleston v. Lowell, 106 Mass. 282 ; Conroy v. Vulcan Iron Works, 62 Mo. 35 ; Dale v. Railway Co., 63 id. 455; Wood Mas. & S., §§ 376, 385, and cases heretofore cited.)

Complaint is made of the ruling of the court in refusing several instructions requested by the plaintiff in error. The-third was a declaration that the company would not be liable if Irwin could have protected himself by the use of ordinary care. The court stated this rule favorably enough for the company, where it instructed that —

“If the bridge in question was of sufficient height and width to enable employls, while in the discharge of their duties on top of freight and caboose cars in use at the time on defendant’s road, to pass through it with safety by the use of ordinary care to protect themselves from injury, then defend *713 ant would not be liable for plaintiff’s injury. The law does not require the defendant to furnish a bridge which the plaintiff could not be injured on, but is only required to furnish such a bridge as the plaintiff could pass through in safety, in the performance of his duties to the company, while exercising ordinary care for his personal safety.”

The ninth request related to the knowledge of Irwin, holding that if he had knowledge of the bridge, or reasonable opportunity to know of its proximity to the top of the cars, he could not recover. The instruction as drawn was not exactly in harmony with the view we have taken, but the company has no cause to complain with respect to this rule, as the twentieth and twenty-second instructions given by the court stated that if he knew or had opportunity to inform himself of the condition of the bridge and the position of the braces, and their proximity to the top of the caboose, he could not recover; and further, that if he had a fair opportunity for acquiring a knowledge of the condition of the bridge and its danger while passing thereunder, if there was any, but ignored such knowledge or opportunity, and neglected to avail himself thereof, he cannot derive any advantage from such ignorance or want of knowledge, but his rights are to be determined the same as if he possessed the knowledge he might have acquired by the reasonable exercise of his faculties. The tenth request related to the duty of the company in the construction of the bridge, which duty was stated more fully and correctly in several instructions that were given. Objections are made to the twentieth and twenty-third instructions that were given. They relate to the rule fixing the liability of the company where an employé has knowledge of the danger which he encounters. We do not think the criticisms of counsel are justified. But as the jury has expressly found that Irwin had no knowledge of the defect in the bridge, thesé instructions become unimportant.

We have examined the objections to the admission of evidence, and it is sufficient to say that we do not regard the rulings to have been prejudicial to the rights of the plaintiff in error.

*714 5. Misconduct ofcounsel; review, when.

One of the grounds for a new trial was the misconduct of counsel in his closing argument. The affidavits which were filed in the case show that the remarks of counsel were outside of the evidence, and were clearly improper. However, no objection to the remarks was made, except to the statement that Irwin would wait in misery and pain for the coming-in of the jury, and that he hoped they would give more than the jury did before, to pay for the long trouble and the long work. The objection to this statement was promptly sustained by the court, and the attention of the court below was not called to any other of the objectionable statements. Of course the arguments should be confined to the facts brought out in the evidence, and it is error to allow counsel, over objections and exceptions, to discuss matters foreign to the evidence and prejudicial to the opposing party. But in exercising its appellate jurisdiction, this court is limited to the review of the alleged errors committed by the district court; and generally speaking, the attention of the trial court should be called to the improper language of counsel, and a ruling had upon the objection, in order to present the question here. There being no exception to the ruling on an objection, nor any unsustained objection, we cannot say the court erred. (The State v. McCool, 34 Kas. 613, 617 .)

Some other objections were made, all of which have been examined, but we find nothing in the case that will justify a reversal, and hence the judgment of the district court will be affirmed.

All the Justices concurring.