Rouse v. Ledbetter

The opinion of the court was delivered by Martin, C. J. : I. It is alleged in the petition, among other things, in substance that the sidewalk on the north side of Johnson avenue was constructed and maintained as required by an ordinance of the city, and it is contended by the plaintiff in error that the manner of making the connection from the level of the sidewalk to the level of the new track is' presumed to have been conformable to the requirements of the city ordinance, and there is no allegation that the receivers had in any manner ignored any such ordinance, and therefore the petition was insufficient to state a cause of action. It was alleged, however, that the defendants below ‘ ‘ wrongfully and negligently made an, abrupt connection between the said two levels by inclining boards at an angle of about [351] 30 degrees . . . from the level of said sidewalk to the upper surface of the east rail of said newly-constructed track,” and no presumption obtains that the city had established any grade, nor that it exercised any supervision over the construction of the new side-track, nor in making the connection between it and the end of the old sidewalk. It was unnecessary for the plaintiff below to allege the violation of any city ordinance in adjusting the connection between the new side-track and the old sidewalk. II. It appears that Ledbetter had been working in the yards about a year, but nearly all the time in the west yards, and remote from Johnson* avenue; yet he worked in the east yards for 8 or 10 days next prior to his injury, though most of the time he was doing field-work, and not following the engine. It was in evidence, however, that he had crossed Johnson avenue many times during those days, either upon the footboard of the engine, on cars, or afoot; but he testified, and the jury found, that he never noticed this incline connecting the Steele & Busby switch with the end of the old sidewalk. He further testified, that he had never made any coupling or performed any work at that particular place. The plaintiff in error contends, however, that he was bound to take notice of it, and cannot be heard to say that he did not, and that the case comes within Rush v. Mo. Pac. Rly. Co., 36 Kan. 129, and others of like import. In the Rush case, however, the yardman got his foot caught between a main rail and the guard rail, and was run over and killed, and the negligence charged against the company was in failing to block between the rails ; but there were about 20 such places in the yards, and none of them were blocked, and it was held that the yardman must have had knowledge [352] of the want of blocking, and that he waived any negligence that might otherwise be imputable to the railway company on that account. In the present case there was no such apparent danger. The incline was east of all the tracks, and extended along the east rail of the new track only the width of the sidewalk ; and while the jury found that, by the reasonable use of his eyesight, Ledbetter anight have seen it 'while crossing Johnson avenue, yet they say it was not plainly visible from all the tracks there. Besides, it should be remembered that it was covered to a considerable depth with snow at the time of the casualty, and that, if he had known of the incline being at or about the place where he alighted from the car, he might not have noticed that he was stepping onto it. We do not think that the failure of Ledbetter to notice this incline during the several days that he might have seen it, had his attention been called to it, nor the fact that he stepped upon it to make the coupling, is conclusive evidence of contributory negligence on his part, nor that he waived the risks attendant upon stepping thereon for the purpose of making the coupling. The faculty of close observation of objects is largely a gift. Some persons may walk once along a street and be able, without any special effort, to describe every prominent object upon and every projection into the street, while others might go up and down the same street for a year, who could not describe such objects and projections. If Ledbetter had ever walked upon this incline, doubtless he would have noticed it; but we cannot judicially say that his failure to observe it as he crossed Johnson avenue from time to time in doing his work was conclusive evidence of negligence on his part which ought to preclude a recovery for ■■ injuries sustained ■ by reason of the negligence of the [353] receivers. The master is in duty bound to provide a reasonably safe place for his servant to work. Many dangers necessarily attend the performances of the duties of a yard switchman, but the master is not allowed to increase the hazards of his servant by placing pitfalls, obstructions, traps or inclines in his path, whereby he may lose his footing and be mangled or killed; and in such case, where there is no contributory negligence on the part of the servant, and his conduct has not been such that the court or jury must say that he has waived the negligence and assumed the risks, a recovery may be had on account of an injury resulting therefrom. (K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kan. 661.) No complaint is made because of instructions given or refused, nor on account of the admission or rejection of testimony, and, finding no material error in the case, the judgment must be affirmed. All the Justices concurring.