Union Pacific Railway Co. v. Geary

The opinion of the court was delivered by ■ HORTON, C. J.: The contention of the railroad company is, that the demurrer to the evidence introduced by the plaintiff below should have been sustained, first, because plaintiff failed to prove the negligence alleged in her petition; and, second, — 316 — because she did prove contributory negligence on the part of the deceased. It was not shown there was any “violent or unusual jerk” in the starting of the train, or that Geary had read the rules concerning the signals in the starting of a train. While the jury did not find that there was any “violent and unusual jerk” in the starting of the train, the record is full of evidence that there was a jerk, more or less, on the rear cars of the train when it started. Rabas, the foreman, testified : “Q,ues. Now, describe to the jury the character of the start that train made at the time Geary fell. Ans. It just started. As soon as the train started down the grade, it made a jerk toward the east, and Geary made a great effort to hold himself on his feet, but as soon as it made a second jerk downhill, he went between the cars headforemost. It did not take hardly a second; then I heard a yell, and the conductor made motion to the engineer to stop, and they stopped right away. The leg left on the track was found right behind the caboose, and the train did not go any distance before they stopped. “Q,. At what time did Geary halloo? A. As he was falling down. “Q,. Did you hear him halloo more than once? A. No, sir. “Q,. What kind of a halloo was that — loud or not? A. Loud.” It was in evidence that Geary was an experienced track repairer; had worked for a long time on the road; that he was a good section hand, and knew his duty. There was also evidence tending to show that signals were required to be given before a train starts, and that a signal should have been given for starting the train from which Geary was thrown after the conductor motioned with his hand for the engineer to go ahead with the train. Delaney, the front brakeman, testified: “Q,ues. Did you see the conductor give a signal to go-ahead ? Ans. I did. “ Q,. Where was he at the time, and what kind of a signal did he give? A. I think he was in the side door of the caboose; and gave the usual go-ahead signal — the raising of the hand. — 317 — “Q,. Could you see the engine at that time? A. Part of it. “ Q,. What part ? A. Saw the cab and stack. “ Q. What other signal was given, if any, before the train started at that time? A. I don’t remember of any other. “Q. How long did the train remain at a full stop — -at what time? A. About one minute, to the best of my judgment and recollection. “Q,. In starting freight trains, upon which you were employed by the defendant company, was it customary to start the train before any signal from the engine? A. It was customary to ring the bell, and some cases the whistle was sounded. “ Q. If the engine bell had been rung at this time, was there anything to prevent you hearing it? A. I do n’t know of anything that would prevent me hearing it.” Heshion, the rear brakeman, testified: “ Ques. In what manner did the accident occur that caused his death at the time stated ? Ans. The train stopped there to pick up the section men, and Geary and the other men got on the train, and Geary fell between the cars and was run over. “ Q. As the train approached the section men on that occasion, did you set the rear brake before the train came to a stop? A. Yes. “Q,. Was there a hand brake for your use in the cupola of said caboose? A. Yes. “ Q,. From the position you occupied in said caboose, could you see the section men getting on the train ? A. Could not see them in the act of stepping on the steps of the caboose; I saw them coming toward the caboose. “Q,. State if you know what part of the train Geary got upon. A. Geary got on the southwest corner of the rear box car, went up the ladder and stepped over on to a flat car that was loaded with ties. This flat car was the first or second from the caboose. “Q. Did you see Geary after he was on the car of ties? A. Yes, sir. “Q,. In what position was Geary when you last saw him on that flat car? A. He just stepped across onto the flat car, and was leaning against the box car. “Q,. At that time was the train in motion or standing still? A. Standing still. - — 318 — “Q. Did you see Geary fall? A. I did not. “Q. Did he fall between the box car and the car load of ties which you have mentioned? A. To the best of my knowledge he did. “Q. Did you receive any signal from the engine, either by whistle or the ringing of the bell, that the train was about to start? A. I did not hear any. “Q. At the time the train started, was your brake still set? A. It was. “What, if anything, did you do when the train started? A. I released the brake in the cupola. “How soon after the train started did you learn that an accident had occurred? A. I learned in a very short time that something had happened, but it was some time before I knew what it was. “ Q,. In what manner did you learn that something had happened? A. By seeing head brakeman giving violent stop signals. “Q,. What, if anything, did you hear? A. I heard a human voice about the same time as of some one in misery. ' “Q. Was the tone of the voice you heard loud or medium? A. It was loud. “ Q. Did you set your brake and bring the train to a stop again? A. Yes, I did.” From this and other evidence introduced about the ordinary use of signals, and the long experience of Geary in railroad service, the inferences are that he had knowledge of how trains were handled and operated on the road on which he was working. If there was no “violent or unusual jerk” in the starting of the train, yet, if on account of the omission to ring the bell, or sound the whistle, and a jerk of the train in starting, Geary was thrown from the car without fault on his part, the material allegations of the petition as to negligence were sufficiently proved. There was evidence to sustain the following findings: “Q,ues. If the engine bell had been rung for 10 seconds before starting the train, could Geary have heard it? Ans. Yes. “Q,. Did the engineer or fireman of defendant’s engine ring the bell before starting the train? A. No.” In support of the alleged contributory negligence, it is — 319 — urged that Geary, by voluntarily climbing upon the freight car, when he had no duty to perform there, and when a safe place was provided for him in the caboose, brought himself clearly within the rule stated in the case of the U. P. Rly. Co. v. Estes, 37 Kas. 715; and by carelessly standing on a loose tie in a dangerous place, without bracing himself in some way, he brought himself within that general rule which requires all persons of sound mind to exercise a reasonable degree of care for their own safety. It appeared from the evidence that, after the freight train stopped, it was under the direction of Rabas, the foreman in charge of the repairing of the track of the railroad. He testified “that before the conductor gave the signal for the train to start, he saw that Geary was standing on the car of ties;” and the conductor testified: “Ques. Was it a proper place for Geary on that occasion?' Ans. I can’t say whether it was a proper place or not. “Q. Did you consider his position a dangerous one? A. I did not, at the time.” The foreman also testified that “there was nothing to get on that train for except to unload ties; that when told to go back, the men knew there was something to unload, and ties were needed at the place the train stopped; that it was the custom for the men to ride on the load of ties; that Geary was a good section hand and knew his duty; that the ties, were back in the train toward the caboose.” To the question, “Why did the other men get on the caboose?” Rabas-said, “I don’t know.” Mike Hines, a witness for the railroad company, testified that “The workingmen could pick any place to ride; that the workingmen has not time to pick out best places to ride upon; and that he had ridden on a car of ties several times.”' It also appeared from the evidence that after Geary fell from the car the caboose was left, and the foreman and one' of the section men rode about a mile and a half on the car of ties and unloaded them; that after the conductor signaled. — 320 — with bis hand for the train to go ahead the train started, without the whistle sounding or the bell ringing. The conductor testified about the signal as follows: “Ques. In what manner did you signal the engineer, and what time was required to make that signal? Ans. I signaled him with the usual signal of the hand, which probably requires two or three seconds. “ Q. What is the usual signal you speak of? A. By raising the hand straight up and moving it. “Q. In what manner does the engineer recognize your signal? A. He usually recognizes it by the ringing of the bell and the starting of the train. “Q. Are those two recognitions simultaneous? A. There is usually a short intermission. “Q. What intermission, if any, was there on the day at the time in question? A. As I stated before, I don’t re-, member as to whether the bell rung.” ll —contributory^ question for finding?It must be recollected that McGuire and Geary were on the south side of the track, and that, as the train passed Geary and McGuire, the engineer called to McGuire, “Harry, get on the train; there is a carload of ties to be distributed; ” and that Delaney, the head brakeman, as he passed Geary and McGuire, told them “We have a car of ties to unload?” that the foreman did not direct Geary to get into the caboose, and, for aught that appears, Geary might have supposed that it was necessary for him to get upon the car loaded with ties, for the purpose of unloading them. Therefore, we cannot say in this case, upon all the evidence, as a matter of law, as in the Estes case, that Geary voluntarily placed hirn-self in a dangerous position unnecessarily, when there was another place that was safer that he could have chosen, and that he had time to exercise his judgment thereon. The negligence alleged in the petition, and the contributory negligence alleged in the answer, were matters for the determination of the jury upon the conflicting evidence. Upon suf-cient evidence, the jury made the following, among other special findings: — 321 — “ Q,ues. Did Geary know, at the time he got on the train, that there was a car load of ties to unload ? Ans. Yes. “ Q,. Did Geary know, at the time he got onto the train, where the car load of ties was to be unloaded ? A. No. “Q,. For what purpose did Geary get on the car load of ties? A. To be ready to assist in unloading the ties? “ Q. Did not the conductor see Geary on the car of ties about the time he gave his signal to the engineer to start the train ? A. Yes. “Q,. Was Geary’s position on the car load of ties, at the time the conductor gave the signal to the engineer, a dangerous one, if the train had been properly handled and operated? A. No. “Q. Was Geary accustomed to riding on cars loaded with ties and other material for repairing the track ? A. Yes. “Q,. Was there a custom on defendant’s railroad for section men, when taken up by freight train for the purpose of going a short distance to perform their work, of riding on any convenient car? A. Yes.” It is further contended, that the trial court erred in not giving the following instruction: “ In regard to the question whether the bell was rung upon the locomotive before the start or not, the jury are instructed that positive evidence of witnesses in a position to know they heard the bell ring, or that they rang it, is of greater weight than the negative evidence of persons at a distance from the locomotive, that they did not hear the bell.” The ease of Railway Co. v. Pierce, 39 Kas. 391, is cited as decisive. It is conceded that the locomotive whistle was not sounded, but the engineer and fireman testified that the bell was rung just before the train started. This case comes within the decision of Railroad Co. v. Lane, 33 Kas. 702. In that case it was observed that, “While the request, as a general statement of the rule of evidence, is correct, we do not regard its refusal as error. As presented, it ignored all modifying circumstances, and assumed that no positive testimony was offered by the plaintiff that no signal was given. The testimony of one who was in a position to hear, and who was giving special attention to the sounding of the whistle, that it was not sounded, while nega — 322 — tive in form, is a positive statement of fact; and where the witnesses had equal opportunity to hear the whistle, and are equally credible, it is generally of as much value as the testimony of one who states that it was sounded.” The conductor, who gave the motion with his hand to the engineer for the train to start, “could not remember that the bell rung.” Heshion, the rear brakeman, whose duty it was to set and take the brake off, “did not hear any signal” as the train was about to- start. Delaney, the front brakeman, “did not hear any bell.” Jesse Merrill, who was in a field not far away, and whose attention was called to the omission of the ringing of the bell, testified “ that no bell was rung.” William Merrill, who had worked on the road as a section hand for five or six years, and who was with Jesse Merrill, testified “that he did not hear the bell ring.” The train started without the brake being taken off, which ought not to have happened if the signal to start had been given. In the Pierce case, supra, the persons who testified that they did not hear the whistle had no connection with the operation of the train, and were not upon the train. In this case, three railroad employés, including the conductor, the head and the rear brakemen, all gave testimony against any signal having been given. The refusal to give the instruction, under these circumstances, was not prejudicial. Other instructions are complained of, but it appears from the record that the trial court gave the following: “ If you shall find and believe from the evidence that Geary knew, or that he had a right to suppose from custom and duty and usual manner of doing the kind of work he was about to do, that it was not in the line of his duty to get upon the car at the time and place where the injury occurred, and if he knew, or had a right to know, that the caboose was provided for him and the other section men to ride upon at the time and place where the injury occurred, and that it was a safer place for him to ride upon than the car upon which the injury occurred, then it was his duty to get upon the caboose; and if he, under such circumstances and facts, chose to ride upon the car upon which the injury occurred, he assumed the risk of riding in that position. If, in the discharge of a dangerous — 323 — duty, an employé voluntarily places himself in a dangerous position unnecessarily, when there are other and safer places which he could have chosen, he assumes the risk of riding in such a dangerous position. Railroad companies are not insurers of the safety of the lives of their employés, and are not liable to them for injuries received, unless the railroad company is guilty of negligence causing the injury, and not then, if the employé is guilty of negligence materially contributing to his injury. If you should find and believe from the evidence that the deceased himself so far contributed ito his own injury by his own negligence, or want of ordinary care and caution, that but for such negligence or want of ordinary care and caution on his part the injury would not have happened, plaintiff cannot recover in this action, and you should find for the defendant.” In view of these instructions, the refusal to give others upon similar matters was not error. 3- Smjuagment. We have examined the special findings of the jury, but do not find they justify the severe criticisms made upon them. We have, also, examined the other alleged er-i’oi's discussed in the elaborate briefs, but do not perceive anything sufficient to demand a reversal of the judgment. The judgment will be affirmed. All the Justices concurring.