Southern Kansas Railway Co. v. Griffith

1. Negligence — Pleading and Proof. In an action against a railway company by one of its employés to recover damages for injuries occasioned by the negligence of the defendant or its servants, the negligence proven at the trial and found by the jury as a basis for a general verdict in favor of the plaintiff must correspond with the averments of the petition. 2. Injury to Emuloyé — Foccavation in Railroad Yard — Negligence— Finding— Variance — New Trial. The plaintiff was a switchman in the yard of the defendant at Cherry Vale. While employed in switching cars, he jumped from a car to the ground, at a place where repairs were being made in the track, caught his foot on a projecting tie which was being placed in the track, fell, and his arm was run over and crushed by the wheels. The petition alleges that the defendant was negligent “in causing and allowing said excavations to be made, and said excavated dirt to be placed upon the ground near said track, and in allowing said cross-ties to project and extend beyond and above said track, and in not placing and maintaining danger signals at points proper to indicate the place, or places where such excavations and obstructions were, and in requiring and ordering services of this plaintiff at such time and in such place, and without any negligence on the part of this plaintiff.” The jury found, in answer to a speoial question, that the negligence of the de' fendant was “in failing to notify yard master of'the r&pairs that were then being made in their yard.” Held, That the negligence found by the jury does not correspond with that charged in the petition, and that a new trial must be awarded because of the variance.

Error from Douglas District Court. The plaintiff was employed as a switchman in the yard of the defendant company at Cherry Vale. While so employed, he was injured by having his arm run over and crushed. This action was brought to recover damages therefor. The averments of the petition charging negligence are as follows: “Said plaintiff further says, that on or about the 17th day of May, 1887, this plaintiff was in the employ of the said defendant as a yard man in the railroad yard of the said defendant at said city of Cherry Vale, and was then and there engaged and employed in and about the switching of cars and making up the trains of said defendant, under the direction of the yard master, who had the control and supervision of said yard and the trains therein for the said defendant, and who had authority from the said defendant over this plaintiff and other like employes of said defendant; that the said railroad company, by its section foreman, its employé and agent for that purpose, and duly authorized and instructed, wrongfully, negligently, and in an unusual manner, excavated and removed the dirt from between a large number of the cross-ties in its railroad track in said yard, and made excavations upon and alongside of its said track, and carelessly and negligently caused the excavated dirt to be placed upon the ground near said track and excavation, and carelessly and negligently caused and permitted a cross-tie to project beyond and above the said track and the usual surface thereof at the place where this defendant was then so employed and at work as aforesaid, and carelessly and negligently failed to place •danger signals at proper points to indicate the place or places where such excavations and obstructions were; and, while this plaintiff was so employed as aforesaid, he was ordered and directed by the said yard master to pull one of the coupling pins connecting the cars and cut off two cars from a moving train of the said defendant in the railroad yard aforesaid, at and near the place where the aforesaid excavations and obstructions on said track then were. - “ This plaintiff, in the ordinary and proper discharge of said order, was standing on the brake beam of one of the cars thus to be cut off, and between two of the cars of the said moving train, as he was under the necessity of doing for the purpose of obeying said order, and from said position was unable to see or know what the condition of said track was at all points; and from said position, and while so occupied in and about his duty, was unable to see the excavations and obstructions aforesaid, and did not and could not know how near he was thereto; that in the discharge of his said duty, and in obeying the said order of said yard master, it became necessary for him, the plaintiff, after he had pulled the coupling pin and cut off the cars aforesaid, to jump from the said moving train to the ground at the side of the railroad track, and give a signal to the engineer in charge of the locomotive engine of said train; that on receiving said order, and without negligence on the part of this plaintiff, he, the said plaintiff, pulled the coupling pin and jumped from the said train in order to give the said signal; and then and there, by and in consequence of the carelessness and negligence of the defendant in causing and allowing said excavations to be made and said excavated dirt to be placed upon the ground near said track, and in allowing said cross-tie to project and extend beyond and above said track, and in not placing and maintaining danger signals at points proper to indicate the place or places where such excavations and obstructions were, and by the negligence, carelessness and improper conduct of the defendant, its servants and agents, in requiring and ordering services of this plaintiff at such time and in such place, and without any negligence on the part of this plaintiff, the plaintiff was caught and tripped by said projecting cross-tie and said piles of earth and said excavations, and was thrown under and beneath the cars of its said train and was run over by said cars, and his left arm was mangled and lacerated by reason thereof, so that its amputation became and was necessary, and he was otherwise greatly hurt, bruised, and injured, and remained for a long time sick, suffering great pain, and disabled, and was confined to his room thereby for a long time, to wit, for the space of three months, and was thereby deprived of great gains which he might otherwise have made; and that, by reason of such injuries, he has been permanently maimed, crippled, and injured in strength and health, so as not to be able to be engaged in any employment requiring his former strength.” The jury found a general verdict for the plaintiff for $5,000’ and also returned answers to special questions asked by the plaintiff, as follows; “1. Was the plaintiff, William T. Griffith, guilty of any negligence which contributed to the injury of which he complains in his petition and answer? Ans. No. “2. Was the defendant guilty of any negligence at the time of the accident to the plaintiff stated in his petition, which was the proximate cause of the injury received by the plaintiff stated in his petition? A. Yes. “3. If you answer ‘yes/ state what that negligence was. A. In failing to notify yard master of the repairs that were then being made in their yard. • “ 4. Had the plaintiff, at the time he met with the accident stated in his petition, any personal knowledge of the disturbed condition of the track of the defendant’s railroad at the point where the injury occurred? A. No. “5. Was the plaintiff guilty of any negligence in performing the duty which he was attempting to perform at the time he received the injury complained of? A. No.” And also the following questions submitted by the defendant: “ 1. Did the plaintiff see the condition of the ground just before he jumped from the cars at the place where he suffered the injury complained of? A. No. “2. Could he have seen the condition of the ground at that place before he jumped from the cars, if he had looked? A. No. “3. If you answer the last question in the negative, then state what there was to prevent him from seeing the condition at that place. A. The box car in front of him. “4. Did the plaintiff look to see where he was jumping or where he would alight, before he jumped, at the place where he was injured? A. Yes, in a general way, as one naturally would at such times and places. “5. When did the section force begin the work of replacing ties under the main track from the switch, with reference to the time the plaintiff was injured, and at what time in the day did they begin work? A. Some time in the afternoon of the day previous to the accident. “6. Did not the section force continue the work of replacing ties there from the time they began until the time plaintiff was injured? A. Yes, during working hours. “7. Was not the repairing which was done at that time and place by the section force necessary to be done? A. Yes. “8. Was not the work of replacing the ties there done and performed in the usual manner of performing such work? A. Yes, in that yard.” “10. Did not the plaintiff have knowledge that this work was being done there by the section force before he was injured? A. No. “11. Was not the plaintiff, before his injury, in a condition to have seen and known that the work of repairing was being done there? A. We believe not. “12. Was not the plaintiff at or near the place where the work of repairing by the section force was being done before he went to uncouple the ears from which he jumped and was injured? A. Not till he ran to throw the switch. “13. If you find that the plaintiff was negligent, and that such negligence was the proximate cause of the plaintiff’s injury, then state the particular act of negligence that caused the injury? A. We find no negligence upon his part. “ 14. Would it not have been ordinary care for the plaintiff to have looked to see where he would alight, and the condition of the ground there, before jumping from the train? A. Yes. “15. Ought not a careful and prudent man, situated as the plaintiff was on the cars, moving at the rate of from three to four miles an hour, to have looked to see where he would alight before jumping from the train? A. Yes.” A motion for a new trial was duly made and overruled, and judgment entered on the verdict. The defendant brings the case here, alleging errors.