Summary
Appeal from Johnson district court; Winfield H. Sheldon, judge.
STATEMENT.
This action was commenced in the district court of Johnson county, by Charles R. Justice, to recover damages for injuries received while in the employment of the St. Louis &• San Francisco Railroad Company. The injuries were sustained February 8, 1907. This action was commenced September 21, 1907.
Mr. Justice was employed as a section-hand, under a foreman by the name of George Nelson. The section upon which he was employed extended from Olathe south about six miles. On the morning of February 8 the foreman, with a crew of five men, including the plaintiff, started south with two hand-cars. The foreman and three of the crew were on the car in front, and the plaintiff and C.- E. Hill were on the car following. The cars ran close together. When about two miles from Olathe they discovered a train coming from the south. ’ It proved to be a Missouri, Kansas & Texas passenger-train which ran regularly' over that road, and was then running on schedule time. The handnars were stopped and the foreman said: “We will take this hand-car off here; and the other we will take back to the private crossing.” The plaintiff and Hill, without further orders, rolled their car back to the crossing indicated by the foreman, which was fifty to sixty yards distant, and proceeded to take it off the track. ‘They expected a man from the other car to follow them •and help move their car, but did not wait for him. The •approach to the crossing was a little steep. They lifted one end of the car off the track, and when on the ground it pointed down-hill. The plaintiff was standing at that end. When the wheels were all off the rails the car was inclined to go down the approach. 'The ground was frozen and had thawed enough to make the surface quite slippery. On this account the plaintiff •could not maintain his foothold so as to prevent the car from going down-hill, and for the same reason Hill was unable to render much assistance. In spite of their •efforts to hold the car it crowded the plaintiff down the side of the grade. In his attempt to check the car he lost his balance, fell, and was run over and seriously injured. A man from the other car reached them about the time'the injury was completed, and assisted in extricating the plaintiff from under the car. He was taken to the railway hospital, where he remained more than two months..
On April 2, 1907, plaintiff made a written statement to the defendant’s claim agent, describing how the injury occurred, which reads:
“STATEMENT OF CHARLES JUSTICE.
“Springfield, Mo., April 2, ’07.
“At the time I was injured near Olathe, Kan., on February 8, 1907,1 was working on section under foreman George Nelson. '
“On leaving Olathe in the morning we had an extra hand-car that we were to take to Bonita for the gang Working south of our gang, and for something like a mile back toward Olathe from point where accident occurred. Charley Hill and I were the only men on the regular car, Foreman Nelson and the other men all being on the extra car. They were in front, and Hill and I followed them closely.
“When we were out about two miles from Olathe a passenger-train (I think 106) showed up about one mile south of us, and on seeing the train approaching Foreman Nelson remarked to the men on both cars that we would set the car he was on off at the point where it was then stopped, and that we would run the one Hill and I were on back to a private crossing, about fifty or seventy-five yards, on account of not being room to put both cars off at the same place.
“I did not understand from Nelson’s remark that he intended for Hill and I to take the car back and put it off alone, but Hill and I voluntarily rolled the car back; to the crossing while Nelson and the other men were putting the other car off, and in getting the car off I was injured.
“When we got back to the crossing I told Hill to put his weight on the rear end of the car-, and that I would take hold of the forward end and in this way we would take the car off.
“After turning the car around and starting to roll it away from the track we managed it all right until the hind wheels dropped down off the rail, and then the car. gave a lurch forward, and, as there was snow and ice on the ground, I was unable to stop the car, and I lost my balance and fell when-1 stepped back into a ditch, and the car followed after me into the ditch and one of the handles at the front end of the car struck against my right foot and ankle, and I have been unable to put. my foot to the floor yet.
“As I remember, Nelson and the other men had put the front car off and were on their way back toward Hill and I at the time I was injured.
“Two men can put a car like this one off. at that crossing without any difficulty, as it was not a heavy car, and there was not much of a load on it.
“The train was not so close but what we might have waited for Nelson and the other men to have assisted us, but there was no 'apparent reason for doing this. ,
■ “I consider that my injury was purely the result of an accident, and that neither Nelson nor any of the men were in any way to blame for it. There was no ■ defect about the car or track that I know of, and I know of no reason for saying that the company is to blame for my injury, but, as I was working for the company’s interest at the time I was injured, I feel that the company ought to pay me for time lost.
■ “I am 56 years old, married, live in Olathe, and have been working for Frisco at different times for the past ten years.
“I have read the above and find it true.
(Signed) C. R. Justice.” •
During the trial, on cross-examination concerning this statement, he said:
“Ques. In reference to this statement, when you wrote on this, T have read the above and find it true,’ you did read the statement? Ans. Yes, sir.
“Q. It was true, what you state in here? A. Yes, sir.
“Q. You say now it is true what was read to you? A. I say it is true; yes, sir.”
The description given in the petition of how the injury occurred is substantially the same as the statement of the plaintiff herein given. The plaintiff testified on the trial, in part, as follows:
“Ques. And Hill got on the hind end and you said you would take it at the front end? Ans. Yes, sir.
“Q. After turning the car around you started to roll it away from the track and managed it all right until the hind wheels dropped off the rail — that is correct? A. Yes, sir.
“Q. [Reading from the statement:] ‘And then the car gave a lurch forward, and, as there was snow and ice on the ground, I was unable to stop the car’ — is that right? A. Yes, sir.
“Q. ‘And I lost my balance’? A. The car shoved me.
“Q. ‘And fell when I stepped back into the ditch, and the car followed after me into the ditch and one of the handles at the front end of the car struck against my right foot and ankle, and I have been unable to put my foot to the floor yet’ — '-that is what you said ? A. I don’t think I fell; I did n’t'fall.”
“Q. You slipped on the ice? A. Yes, sir.
“Q. You knew ice was there? A. Yes, sir.
“Q. You fell? A. I slipped into the ditch — sat down on the opposite bank.
“Q. Slipping, you fell? A. I sat down.
“Q. By slipping the hand-car ran onto you? A. Yes, sir.
“Q. And if you had n’t slipped it would n’t have run on you, would,it? A. I don’t know whether it would or not.
“Q. Were you trying to hold it? A. I was trying to.
“Q. The only two men who had charge of it were you and Mr. Hill? A. Yes, sir.
“Q. Slipping, it come onto you? A. Yes, sir.
“Q. You knew it was icy and slippery? A. Yes sir; we knew it.
“Q. And slippery? A. Yes, sir.
“Q. Let’s read on: ‘As I remember, Nelson and the other men had put the front car off and were on their way back toward Hill and I at the time I was injured’— that is right? A. Yes; they were coming. They got their car off.
“Q. And were coming toward you ? A. Yes, sir.
“Q. At that time this train you had seen hadn’t gone by yet? A. Not exactly then.
“Q. Now listen further: ‘Two men can put a car like this one off at that crossing without any difficulty, as it was not a heavy car, and there was not much of a load on it’ ? A. Two men can put that car off at that place.
“Q. You did get it off? A. Yes, sir.
“Q. By your slipping it ran onto you? A. By my being unable to hold my feet.
“Q. If you had n’t slipped it would n’t have run onto you ? A. I don’t know.
“Q. It was usual and customary for two men to take the car off ? A. It was customary for the men handling the car to put it off.
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“Q. You did get it off? A. Yes, sir.
“Q. But for the fact it was slippery and you slipped it would n’t have run onto you, would it? A. I don’t know whether it would or not.
“Q. If you had n’t slipped you could have held onto the car? A. Yes, sir.
“Q. And prevented it from running onto you? A. I don’t know.
“Q. Didn’t you say two men could take it off the track? A. I said they could get it off the track.
“Q. You did? A. Yes; but we didn’t manage it after we got it off.
“Q. That was due to your slipping? A. Yes, sir.
“Q. You had told Hill where to go? A. Yes, sir.
“Q. You had told him to get on top? A. Yes, so we could raise it; he could do more there than he could at the other end.
“Q. Listen further: ‘The train was not so close but what we might have waited for Nelson and the other men to have assisted us, but there was no apparent reason for doing this, as we two could move it’ — that is correct, ain’t it? A. I don’t remember them words; that is what I stated, if it is there.
“Q. T consider that my injury was purely the result , of an accident, and that neither Nelson nor any of the men were in. any way to blame for it’ — is that what you said ? A. I don’t remember.
“Q. Look at that and see if it is above your signature there. A. If it is there, I said it.
“Q. That is correct, too. is n’t it ? A. I suppose it is as I understood it at that time.
“Q. You understood the facts at that time just as well as you understand them now, didn’t you? A. I don’t look at it the same way exactly; I seen those places afterward and changed my mind.
“Q. What places? The snow and ice? A. No, sir; the shape of that ground.
“Q. The ice was what caused you to slip ? A. I say the slippery grade.
' “Q. It was the snow and ice on the ground that caused you to slip ? A. There was a little snow and ice on the ground that morning and thawed a little.
“Q. ‘There was no defect about the car or track that I know of, and I know of no reason for saying that the ■company was to blame for my injury’ — is that what you said ? A. If it is there, I said it.
“Q. That is correct, too ? A. As I understand it.
“Q. As you understand it now? A. I have changed my mind now; I have seen the track since.
“Q. What was the matter with the track? A. Nothing at all.
“Q. That part about the track is correct? A. The track was in good shape.”
C. E. Hill, who was with plaintiff at the time of the injury, testified as follows:
“Ques. And in this way you swung the car around ■off the track? Ans. Yes, sir.
“Q. That is, the hand-car ? A. Yes, sir.
“Q. You then stepped off the car? A. Yes, sir.
“Q. And took hold of the rear end ? A. Yes, sir.'
“Q. In rolling it off the car turned to one side? A. Kind of lurched and slipped to one side.
“Q. Do you know what made it turn' to one side? A. Ice.
“Q. That covered the ground? A. Yes; and the ground was sloping.
“Q. And the ice on. the ground caused the car to slip to one side? A. Yes, sir.
“Q. I will ask you if Justice controlled the car after it got off? A. He could n’t.
“Q. Was that on account of the slippery ground? A. Yes, sir.
“Q. Did he slip back? A. He scooted along with the ■car.
“Q. After he slipped the car then shoved on, sliding down toward him? A. Yes, sir.
“Q. I will ask you if the car had rolled straight out from the track as you and Justice started it? A. We could have managed it.
“Q. But for the slipping of the car-on. the ice and Mr. Justice slipping on the ice you could have managed it? A. We was both slipping.”
“Q. Two men ordinarily can take charge of a handcar? A. Yes; I have taken it off myself.
“Q. Were you handling the car in the usual and ordinary and customary manner? A. Yes, sir.
“Q. You held onto the hand-car? A. As long as I could.
“Q. Until it got down toward the ditch, and then it got away from you, too? A. Yes, sir.
“Q. You slipped? A. Yes, sir.
“Q. It got away from you on account of the ground being very slippery? A. Being very icy.
“Q. It was very difficult to stand up? A. Yes, sir.
“Q. Then, as I understand you, Mr. Justice was hurt after the hand-car had gotten off the. track and he had struck in the ditch? A. Yes, sir.
“Q. You had got the hand-car off the track and out of the road of the train ? A. Yes, sir.
“Q. Then Mr. Justice slipped and the car rolled onto him? A. Yes, sir.
“Q. Mr. Berger asked you if it is n’t a fact that the car slipped because it was slippery; was it because it was slippery, or was it because the car was so heavy you could n’t manage it ? A. The ground was icy; we had managed it many a time with as big a load; it was icy, and I suppose it was the load and ice together that caused it.”
The allegations in the petition read:
“And plaintiff says that said injuries and damage were and are the direct and proximate result of the negligence and want of care of said defendant corporation, its servants, officers, agents and employees, in this, to wit, that said section foreman, George Nelson, knew, or by the exercise of ordinary care and caution woiild have known, that said passenger-train was due at said place before discovering the approach of 'said train as aforesaid, and in time to have avoided all danger, and to have safely removed said car from, the track, said train being a regular Missouri, Kansas & Texas passenger-train running on said road and being due at the time, or soon after, said hand-car left Olathe; that said Nelson was negligent in not providing a sufficient number of men to safely remove said car from the track as aforesaid, said foreman well knowing that two men could not safely handle the said car in removing it from the track before the approach of said train; that said section foreman, George Nelson, was guilty of negligence and want of care in not giving timely warning of the approach of said passenger-train, and in not causing said cars to be safely removed from said railway track before the approach of said train, so as not to endanger the lives of plaintiff and others on said hand-cars.”
The petition, in describing the manner in which the injury was received, says:
“That at the crossing aforesaid the railroad bed was graded to an elevation of about five feet above the level of the surrounding ground, and said crossing was constructed with abrupt approaches, which were short and steep; that at said time the ground was frozen, but the surface had thawed, and was muddy and slippery; that plaintiff, in removing said car from the track, was on the lower side of the car away from the track, and on the approach to said, crossing, and said Hill was on the upper side next to the track; that owing to the slippery condition of the ground and the steepness of said crossing, and the great weight of said car, plaintiff and said Hill were unable to hold said car, but it moved down said approach, pushing plaintiff before it, and the wheel,of said hand-car ran on and against the foot, ankle and leg of plaintiff, cutting, crushing and wounding plaintiff’s foot.”
The defendant filed a general demurrer to the petition, which was overruled. A demurrer was also filed to the plaintiff’s evidence, which Was overruled. Whereupon defendant rested without producing any evidence. Instructions were requested which amounted to a direction -to return a verdict in favor of the defendant, which were refused. A verdict was returned in favor of the plaintiff, and the defendant brings the case here for review.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
