Atchison, Topeka & Santa Fé Railroad v. Lindley

The opinion of the court was delivered by Horton, C. J.: This was an action by D. C. Lindley against the Atchison, Topeka & Santa Pé Railroad Company for injuries received while traveling on a stock train, and resulted in a verdict against the company for $9,650. McCambridge was the conductor of the train, Allen was the engineer, and Guy the head brakeman. Lindley was a live-stock dealer, fifty years of age, residing in Albion, Harper county, in this state. He had shipped live stock for thirty-four years. The alleged cause of action occurred on the 16th day of July, 1885. Lindley had shipped on the defendant’s train one carload of hogs and one car-load of cattle from Perth station, in Sumner county, to be transported to Kansas City, Missouri, and was on top of one of the stock cars just before his injuries. He arrived at Eudora, a station between Topeka and Argentine, between five and six o’clock in the morning. The train consisted of forty-five cars loaded with stock. Soon after arriving at Eudora, eight or ten of the cars, with the caboose, broke or separated from the main train. The petition alleged among other things that— “The conductor then in charge of the train, totally disregarding the safety of human life and being grossly careless of the safety of the passengers on the train, and well understanding the culpably negligent manner in which the engineer — 721 — was handling the train, carelessly and negligently asked, directed and induced the plaintiff' to climb up on the top of the cars and signal for the front portion of the train to be backed up so as to have the rear and front portions of the train coupled together, and then signal the cars containing hogs needing water in the hind part of the train, so that the conductor could water them; that the front part of the train was then backed up to the hind portion of the train, and while the brakeman was between the cars, making the coupling, and while plaintiff was on top of the cars, looking in an opposite direction from the engineer, the latter, then and there operating the engine of the train, did then and there, with gross and wanton negligence and with utter disregard for human life, without any warning, suddenly throw open the throttle of the engine and turn on all the steam power possible, so that the engine started up with the cars with so much force and power that the life of any human being upon the top of the train was unsafe; that the train started up so suddenly and with such a tremendous jerk that it threw the plaintiff clear off his feet and pitched him head foremost down upon the railroad track, where he would have been run over and mashed if he had not been snatched from his perilous condition.” The evidence upon the part of Lindley tended to show that when the train stopped at Eudora, he got out of the caboose with McCambridge, the conductor, and T. "V. Borland, another shipper having stock upon the train; that they walked up to the water tank; that the engine and three car-loads of hogs had passed the tank; that the plaintiff then asked the conductor if he would not back up the train and water the three cars that had passed the tank; that the conductor said, “No, the hogs are not yours;” that finally the train was backed up to water or shower the hogs; that the conductor, who was standing at the water tank, looking down at Lindley and Borland, said, “You fellows stand down there, and when a car of cattle or horses comes along that you don’t want watered, throw down your hands and I will turn the water off, and when you come to a car-load of hogs throw up your hands and I will shower them;” that Lindley and Borland did as the conductor suggested; that about a dozen or four — 722 — teen car-loads of hogs were then watered; that when the last car-load of those cars was watered, the conductor looked down again and said to Lindley and Borland, “You fellows get up on top and help signal until the last car-load of hogs comes up, and we will water them;” that Lindley and Borland got upon the top of the train as requested; that Lindley got upon the hind end, but stepped from there to a carnear the engine; that Borland remained on the end car; that the train then backed down to where the detached portion of it was; that when the train got down to the detached cars it stopped quite a longtime; that Lindley had curiosity enough to walk down to where Borland was; that at this time the train was standing still; that when the plaintiff came near to where Borland was, the brakeman was in the act of coupling the cars; that the plaintiff saw Borland looking down at him; that plaintiff walked up toward Borland and got near the end of the car; that just at that moment Borland threw up his hands and said, “Look out;” that the crash then came; that the coupling-pin broke and the cars separated; that Lindley fell off and was severely bruised and injured. The court charged the jury among other things as follows: “If you find from the evidence that the plaintiff went upon the top of the train at the request of the conductor of the train to assist the train-men in giving signals to the engineer to back up the train for the purpose of coupling on to the part which had been detached, you would be justified in finding that he went upon the train voluntarily, as the conductor in so doing'would be acting beyond the scope of his employment.” The jury also made the following findings of fact: * Who made the coupling at the time of the accident, and was he the head brakeman ? Guy, the head brakeman. “Was the plaintiff, D. C. Lindley, watching the brakeman between the cars making the coupling at the time of the accident ? Yes. “ Was it a part of the duties of the plaintiff, D. C. Lindley, in taking care of the two car-loads of stock on the train, to assist the train-men in managing, running or coupling the cars on the train and in making signals to the engineer ? No.” — 723 — 1. Dangerous position voluntarily taken-company not liable for damages. The plaintiff contends that he was thrown or pitched off the top of the car by a sudden forward motion of the train, and in this he is supported by the findings of the jury. The defendant insists that Lindley fell off the car while the slack of the train was running out. The important question in the case is, whether, under the allegations of the petition, the testimony of the plaintiff, the instructions of the court, and the special findings of the jury, the plaintiff is entitled to recover. We think not. Lindley knew, according to his own testimony, the places of danger and safety upon the train. x ° J x He was under no obligation to climb upon the top of the train and signal the conductor or any employé. “Out of curiosity” he walked down to the end of the car where the- brakeman was coupling the train. At the time of the accident he was watching the brakeman coupling the cars. He assumed a position on the top of the cars which he knew was peculiarly dangerous and perilous. It was not necessary for him to be there to care for his stock, or as a passenger. The order or direction of the conductor to him “to go on top of the cars and help signal,” was entirely without the routine of the conductor’s duties; and as it was voluntarily obeyed by Lindley, it could not fasten any liability on the railroad company. If he acted as an employé or brakeman, it was of his own volition. He occupied merely the position of a passenger who voluntarily assumed a very dangerous position to make signals at the request of the conductor as a matter of accommodation. In McCorkle v. C. R. I. & P. Rly. Co., 16 N. W. Rep. 714, it is said: “ Plaintiff got off a cattle train at night to examine his cattle when the train stopped for that purpose, and not hearing the signal to start, attempted to get on a freight car after the train had started, because he supposed, from the ‘lively rate’ the train was moving, he would not be able to get on the caboose at the rear of the train, which had been provided for passengers. At the time he attempted to get on the freight car, he had a ‘prod-pole’ and a lantern in his hand. His foot caught in a hole caused by a defective plank in the bridge over — 724 — which the train was passing, and he fell from the car and was injured. Held, That he was guilty of contributory negligence, and not entitled to recover.” In Pa. Rld. Co. v. Langdon, 92 Pa. St. 21, it is said: “On the other hand, should a passenger insist upon riding upon the cow-catcher, in the face of the rule prohibiting it, and as a consequence should be injured, I apprehend it would be a good defense to an action against the company, even though the negligence of the latter’s servants was the cause of the collision or other accident by which the injury was occasioned. And if the passenger thus recklessly exposing his life to possible accidents were a sane man, more especially if he were a railroad man, it is difficult to see how the knowledge or even the assent of the conductor to his occupying such a position could affect the case. There can be no license to commit suicide. It is true the conductor has the control of the train, and may assign passengers their seats. But he may not assign a passenger to a seat on the cow-catcher, a position on the platform, or in the baggage car. This is known to every intelligent man, and appears upon the face of the rule itself. He is expressly required to enforce it, and to prohibit any of the acts referred to, unless it be riding upon the cow-catcher, which is so manifestly dangerous and improper that it has not been deemed necessary to prohibit it. We are unable to see how a conductor, in violation of a known rule of the company, can license a man to occupy a place of danger so as to make the company responsible.” In L. V. Rld. Co. v. Greiner, 113 Pa. St. 600, is is said: “ Where one negligently and without excuse places himself in a position of known danger and thereby suffers an injury at' the hands of another, either wholly or partially by means of his own act, he cannot recover damages for the injury sustained. The contributory negligence which prevents recovery for an injury, however, must be such as cooperates in causing the injury, and without which the injury would not have happened.” In L. R & F. S. Rly. Co. v. Miles, 13 Am. & Eng. Rld. Cases, 10, it is said: “But there are certain portions of every railroad train which are so obviously dangerous for a passenger to occupy, and so — 725 — plainly not designed for his reception, that his presence there will constitute negligence as a matter of law, and preclude him from claiming damages for injuries received while in such position. A passenger who voluntarily and unnecessarily rides upon the engine or the tender, or upon the pilot or bumper of the locomotive, or upon the top of a car, or upon the platform, cannot be said to be in the exercise of that caution and discretion which the law requires of all persons who are of full age, of sound mind and ordinary intelligence.” In Flower v. Penn. Rld. Co., 69 Pa. St. 210, an engine with one freight car had been detached from a train, and was stopped at a water station. The fireman requested a small boy standing near to put in the hose and turn on the water. While he was climbing on the tender to do this, the other freight cars belonging to the train came down without a brakeman and struck the car behind the tender. The boy fell, and was crushed to death. The court held that the company owed no special duty to the boy, saying: “The case turns wholly on the effect of the request of the fireman, who was temporary engineer. Did that request involve the company in the consequences? . . . The fireman, through his indolence or haste, was the cause of the boy’s loss of life. Unless his act can be legally attributed to the company, it is equally clear the company was not the cause of the injury. The maxim, Qui faeit per alium faoit per se, can only apply where there is an authority, either general or special. It is not pretended there was a special authority. Was there a general authority which would comprehend the fireman’s request to the boy to fill the engine tank with water ? This seems to be equally plain without resorting to the evidence given, that engineérs are not permitted to receive anyone on the engine but the conductor and fireman, or superintendent; that it is the duty of the fireman to supply the engine with water; that he has no power to invite others to do it, and can leave his post only on a necessity.” In Railroad Co. v. Jones, 5 Otto, 439, Jones was one of a party of men employed by a railroad company in constructing and repairing its roadway. They were usually conveyed by the company to and from the place where their services — 726 — were required, and a box car was assigned to their use. Mr. Justice Swayne, delivering the opinion of the court, said: “The plaintiff had been warned against riding on the pilot, and forbidden to do so. It was next to the cowcatcher, and obviously a place of peril, especially in ease of collision. There was room for him in the box car. He should have taken his place there. He could have got into the box car in as little, if not less, time than it took to climb on the pilot. The knowledge, assent, or direction of the company’s agent, as to what he did, is immaterial. If told to get on anywhere, that the train was late, and that he must hurry, there was no justification for taking such a risk. As well might he have obeyed a suggestion to ride on the cowcatcher, or put himself on the track before the advancing wheels of the locomotive. The company, though bound to a high degree of care, did not insure his safety. He was not an infant, nor non com/pos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter, the former could not arise. He and another who rode beside him were the only persons hurt upon the train. All those in the box car, where he should have been, were uninjured. He would have escaped also if he had been there. His injury was due to his own folly and recklessness. He was himself the author of his misfortune. This is shown with as near as an approach to a demonstration as anything short of mathematics will permit.” In G. P. Rly. Co. v. Propst, 83 Ala. 518, it was decided that— “A railroad company is liable, as principal, for injuries received by a person who was employed by the conductor of a freight train as brakeman during the trip, while acting under the orders of the conductor in coupling cars; but not if the person so acting and injured was only a passenger, who was not employed by the conductor, nor under any obligation to obey his orders.” In the opinion rendered by Chief Justice Stone it was said that— “So far as this count informs us, the plaintiff was a mere passenger on the train; and, so far as the right to control or — 727 — direct the movements of the plaintiff is shown in this count, the conductor would have had as much authority over any other passenger, or even a bystander, as he had over him. Such order or direction, as averred, is entirely without the routine of the conductor’s duties.” In G. P. Rly. Co. v. Propst, 85 Ala. 203, the conductor addressed the plaintiff as follows: “Will., come here, and make'this coupling for me;” and the plaintiff was injured in conforming to this order or request. The court said: “ Such an order or direction could not fasten a liability on the railroad corporation.” (See also Gilliam v. S. & N. Rld. Co., 70 Ala. 268; Howard v. K. C. Ft. S. & G. Rld. Co., 41 Kas. 403.) We are referred to I. & S. L. Rld. Co. v. Horst, 93 U. S. 291, as decisive in favor of the recovery of the plaintiff. That case decides that a shipper accompanying his stock on the train is entitled to the rights of a’passenger, but in many particulars widely differs from this. In that case the shipper was commanded by the conductor to get out of the caboose and go on top of the train, because the caboose was about to be detached. The shipper had no choice but to obey or leave his stock to go forward without anyone to accompany or take care of them. In this case there was a caboose accompanying the train, where the plaintiff might have ridden in safety. He did not go upon the top of the train to accompany his stock, or to take care of them; he went, as before stated, merely to comply with the order or request of the conductor to assist in signaling the train. The other cases referred to by the plaintiff are not contrary, we think, to the law as before declared. In answer to one of the questions, the jury stated that the plaintiff was not “guilty of negligence in going on top of the train at Eudora just prior to the accident.” This finding of the jury, however, is not conclusive. If the plaintiff’s evidence, with all the legitimate inferences which a jury might reasonably draw from it, is insufficient to sustain a verdict in his favor, so that a verdict for the plaintiff, if one should be — 728 — returned, would be set aside, the court may properly direct a verdict for the defendant without submitting the evidence to the jury. In A. T. & S. F. Rld. Co. v. Plunkett, 25 Kas. 188, the jury found that Plunkett, at the time of his injuries, was in the exercise of reasonable and ordinary care. This finding was not considered sufficient to authorize the verdict, in view of the testimony and the other findings. Mr. Justice VALENTINE in that case said: "If the findings in detail contradict the general findings, we may order the judgment to be rendered in accordance with the findings in detail, and wholly ignore the general findings. For instance: Where a question of negligence arises in the case, the jury cannot be allowed to say conclusively, after finding certain special facts, that these facts constitute negligence, when in fact and manifestly they do not constitute negligence." 2. Negligence-no wanton-nees. Finally, it is claimed that although Lindley might have been guilty of contributory negligence, he is entitled to recover, because the conductor and engineer of the railroad cornpany were guilty of gross negligence. Neither the findings of the jury nor the testimony introduced in the case establishes that the company or any ernployé was guilty of such gross negligence as amounted to wantonness. (S. K. Rly. Co. v. Rice, 38 Kas. 398; K. P. Rly. Co. v. Whipple, 39 id. 531.) Allen, the engineer, testifled that the fireman signaled him to stop. Bradshaw, the fireman, testified that Guy, the head brakeman, signaled him. The jury found that the engineer did not see the plaintiff on top of the train just prior to the accident; therefore, he was not actuated either by gross negligence or malice toward him, or anyone else. The conductor did not give the engineer the signal to move forward. The jury, in returning their answers about the negligence of the employés of the train, found as follows: "Q. Were any of the men who were running or operating the train guilty of any negligence at the time of the accident? if yes, in what did it consist? A. Yes; the hurried manner in which the emp1oy~s of the train managed the same. "Q• Did the engineer who was operati~g the engine at the — 729 — time of the accident to the plaintiff and just prior thereto, use ordinary care in handling the engine? A. No.” These answers do not tend to show malice or gross negligence. The judgment of the district court will be reversed, and the cause remanded for a new trial. All the Justices concurring. •