Clark v. Missouri Pacific Railway Co.

*658 The opinion of the court was delivered by Horton, C. J.:

It was charged in the petition that the road-bed, embankment and track of the railroad at Bandall station, where Wm. D. Clark, the brakeman, was injured, were at the time dangerous and unsafe for coupling or uncoupling cars. It was also charged that, by reason of the road-bed, embankment and track being defective and out of repair at the place of the injury, while Clark was in the act of uncoupling a car from the train, he slipped and fell between and under the cars; that the train was then in motion, and had been immediately before set in motion by the employés of the railroad company controlling the same. The evidence shows that Clark had been running over the branch line continuously from April, 1884, until the time of the accident — about 20 months. He lived at Jamestown. He made two round trips each day, being a brakeman all the time. On one round trip it was called a passenger train, and the other a mixed train. Part of the time he acted as baggageman on the passenger train, but he helped to do the switching all the time. He was over this track many times, and helped to do the train work in coupling and uncoupling cars at Bandall. The road was built in 1879. The evidence shows that the road was ballasted with dirt in the usual manner of such ballast, namely, a ridge of dirt in the middle of the track as high as the top of the ties, and descending each way to the bottom, of the ties at the ends, making a descent of six inches in the four feet from the middle of the track to the end of the ties; and this was the condition of the road throughout, except at the terminal stations of Jamestown and Burr Oak, where the filling extended to the end of the ties level with the top.

W. W. Pinkerton, the conductor, and Wm. Tangman, the engineer, were the only railroad men who testified on the trial. Neither was in the service of the company at that time; both were friends of the plaintiff, all living in the same town. They testified that this road was constructed like western roads generally are. Mr. Pinkerton said the *659 dirt was raised in the center and sloped downward toward the ends of the ties for the purpose of drainage, and to let the water out from under the ends of the ties. Mr. Tangman testified that it was customary on the Central Branch, and on western roads generally, to fill in the center of the track and slope outward except at terminal stations, but that on eastern roads they usually grade them up quite a distance from the switch targets. The first witness was J. N. Rogers. The accident occurred on Saturday night, and he was over the track Sunday forenoon. He testified that at the time of the accident the ground was covered by snow which had fallen after some sleet. Two other witnesses testified that there was snow on the ground, and one of them said there might have been sleet also. The movements of the train at the time of the accident were under the direct control of Mr. Clark. He was the head brakeman. Owens was the rear brakeman. Mr. Clark was ahead giving signals to the engineer to direct the movement of these cars. Four or five were attached to the engine and had been drawn out upon the main track east of the switch target. It was desired to throw two or three of these back upon the side track. Mr. Clark turned the switch so that the cars would go back upon it. Vm. Tangman, the engineer, referring to Mr. Clark, said: “He gave the signal to back up.” The engineer obeyed the signal and backed up slowly. As the cars were moving backward, Mr. Clark stepped in to draw the pin to uncouple the cars that were to be left on the side-track from the others. He succeeded in drawing the pin, and then “slipped and fell” with his knee across the rail, and one truck of the car from which he had cut the others off, ran over and crushed his knee. The accident occurred between five and six o’clock in the evening. The employés of the train had their lanterns lit before they reached Randall. The leg of Mr. Clark which was injured was amputated the next morning, but he died the day after.

The evidence showing that dirt ballast was used between the tracks, that the dirt or filling did not extend to the end of the ties, and that the road-bed was raised at the center, but *660 sloped downwards toward the end of the ties,-leaving no dirt under the ends, did not establish that the road was improperly-constructed, or out of repair. Indeed, the evidence is to the effect that the road or branch was constructed like similar roads or branches are generally constructed in Kansas. But if the road was negligently constructed or kept in repair, the deceased had notice of it.

In Rush v. Railway Co., 36 Kas. 129 , Mr. Justice Valentine, speaking for the court, said:

pioye — risks" assumed. “All that can be required of the employer is, that he shall see that the employé is informed with respect to all the dangers and hazards incident to the work; and when this is done, the employé will assume all the risks an(j liazards of his employment. The employer must always act in good faith toward his employé, and see as far as he reasonably can that the employé does not take any unknown risks or hazards; but where the employer and the employé are equally competent to judge of the risks and hazards, and both have equal knowledge of the surroundings, the employer cannot be culpably negligent as toward the employé, although the work may be dangerous or hazardous, and although it might be made safer by the employer if he should choose to do so.”

See, also, Williams v. Railroad Co., 22 Kas. 117 ; Railroad Co. v. Plunkett, 25 id. 188 ; Railroad Co. v. Wagner, 33 id. 660; Railway Co. v. Weaver, 35 id. 412.

In the recent case of Railroad Co. v. Liehe (Sup. Ct. of Col.), 29 Pac. Rep. 175 , it was said:

“The rule is, that when a person engages in the service of another he undertakes, as between himself and his employer, to assume all the ordinary danger and liability of the business upon which he is about to enter, and no more, and if, without fault on his part, he is injured as the result of the negligence of the master, the latter must answer in damages. There are some exceptions to the rule stated, as, for instance, where the servant has equal knowledge with the master of the defects existing in the machinery, the servant will be deemed to have waived his right of action for damages arising from injuries resulting from such defects.”

*661

2 company not negligent.

*660 It is not claimed in this case that the railroad company agreed with the deceased to change or add additional ballast *661 to the road-bed, or that it induced him to remain by any promise to reconstruct or repair the road-bed, embankment or track. The movement of the train was under the control of the deceased, and by his signal the engineer of the train backed it up slowly; therefore, it cannot be said, when he slipped and fell, he was compelled by his superiors to go into 313 unsafe and dangerous place to perform work. The accident was a most unfortunate one, but the proof in the case did not fix any liability upon the railroad company. There was evidence offered tending to show that one end of a rail of the road was slivered up and that some one when crossing over it had caught his pants and fell down. Other witnesses, however, for the plaintiff made an examination and did not notice or find this defect; but if the defect existed, as described, it was some 10 feet from where the deceased slipped and fell, and does not seem to have been in any way the cause of the accident. The same may be said concerning a broken tie which was found a little east of where Mr. Clark lay, which was broken in the middle, but spikes held the rails to it at each end. (Railroad Co. v. Wagner, supra; Railroad Co. v. Estes, 37 Kas. 715 .)

It is next claimed that the railroad company is liable upon the ground that after the accident the physicians or surgeons of the company were negligent in treating Mr. Clark and in amputating his leg. Dr. Friday, a regular practicing physician at Randall, was called immediately after the accident. Mr. Clark was taken to his home in Jamestown, and Dr. Friday did everything possible for his relief until he reached that town. Dr. Hartwell, the local surgeon of the railroad company, then attended, and reported the accident by telegraph to Dr. Holland, the assistant general surgeon, at Atchison —170 miles away. Dr. Holland tried to furnish assistance from Clyde, and Jewell City, but failed. Then he wired Dr. Hart-well to call in any physician he chose in Jamestown. There is evidence tending to show that the amputation might have been made at 10 or 11 o’clock on the night of the accident; it was not made until about 6 o’clock the next morning — 12 *662 or 13 hours after the accident. Four expert physicians and surgeons were then present and assisted in the operation* They were Drs. Friday, Hartwell, Moore and Pigman. The only possible complaint concerning the amputation that can be made is, that it might have been performed six or seven hours before it was. Dr. Moore attended Mr. Clark at the instance of the family, and no objection was made by Dr. Hart-well to the calling of any other physician and surgeon. It does not appear that the railroad company was under any legal obligation to provide medical or surgical care. (Railway Co. v. Beatty, 35 Kas. 265 .) Upon the facts disclosed, there is no evidence showing or tending to show that the railroad company can be held liable for any results of the medical or surgical treatment of Mr. Clark after the accident, which, with the exception of the delay in making the amputation, according to all the testimony, was proper and skillful.

3 pleading ana proof. Complaint is further made that the trial court committed error in refusing to permit plaintiff to show that one of the two cars between which the deceased was injured was taken from another road, and differed from those in general use on the defendant’s road, in that it had no hand-holds or guards to hold or support a person in coupling or uncoupling cars. It is also claimed that the court committed error in excluding the evidence offered tending to show that Mr. Clark, in his lifetime, paid to the railroad a certain portion of his salary, in consideration of which the company was to give him medical treatment in case of injury. The evidence rejected was not offered to support any allegation of the petition. If the matters attempted to be established by the rejected evidence were material, they ought to have been alleged in the petition. No issue was tendered by the pleadings thereon. The railroad company had a right to assume that it would not be called upon to meet any negligence or other material matter not pleaded. (Railroad Co. v. Irwin, 35 Kas. 286 ; Railway Co. v. Fudge, 39 id. 543.)

The judgment of the district court will be affirmed.

All the Justices concurring.