Atchison, Topeka & Santa Fe Railroad v. Butler

The opinion of the court was delivered by Martin, C. J. : I. In the parlance of railroad switch yards, when a car running or standing on one track is struck by a car or cars in motion on another before the two tracks have sufficiently diverged to admit of the cars clearing each other, they are said to "corner” ; and it was a collision of this nature, between cars running in the same direction upon different tracks, that caused the death of Elmer E. Butler. Such an occurrence can hardly take place without the fault of one person or more. It is claimed by the railroad company that the petition is insufficient to charge the foreman or switchman with negligence, and instructions were asked to that effect. The petition was not well drawn, yet we think that, by-a liberal interpretation, it may be said to charge negligence and carelessness in the management of the cars, as [437] well as that of the engine, and as no motion was made with a view to its correction we must hold it to be sufficient. II. Before Butler’s car got far enough on the house track to clear, it was struck by the train on the river track. Had his car run a little faster or the train on the river track a little slower, the collision would not have occurred; and the real question was whether the fault was that of Butler or of the men in the management of the train that was set upon the river track. The jury have found in substance that those in the management of the train were in fault, and that Butler was not, and we think the evidence sufficient to justify their verdict. It tended to show that the train was kicked down upon the river track with great force before Butler’s car had time to get out of the way. It is possible that Butler may have turned the brake-wheel without setting the brake, and this sooner than he should have done, but common prudence would dictate and the rules of the company required that cars should n.ot be ‘ ‘ cornered ’ ’ ; and, before a train is set upon a track, those in the management of it should use reasonable diligence to see that it will clear the car or cars on another track. Reliance is placed by the railroad company upon the fact that those in the management of the train after Butler’s car had been cut off thought it had sufficient momentum to take it beyond the clearing post, and we doubt not that they were correct. But they did not give it time. It was still running when it was struck, and, perhaps, in two or three more seconds it would have been out of the way, but the other cars were hurled down upon it on the other track; and we cannot say that this was not negligence. The evidence tends to show that Butler was upon the top of [438] the car at or near the brake, and looking toward the east, where it was his duty to couple to others at or near the warehouse. In this position he probably did not see the clearing post, nor know the exact location of his car with reference to it; and, after the train was uncoupled from the way-car, it was not in the power of any of the crew to check it, and if Butler noticed it no signal from him would have been of any avail. III. Many particular questions of fact were submitted to the jury on behalf of the defendant below, and complaint is made that some of the answers were indefinite, and the court refused to require the jury to reconsider them. We think, however, that the court should have refused to submit some of them in the first instance. We will quote only one question and answer, namely : “ (38) Is it not a fact that Butler, when on top of the car, could, by remaining there, have seen whether the car he was riding had passed east of the clearing post or not before it stopped? A. Depends upon circumstances.” This question is negative in form, and leading. Besides, it asstimes that t|ie car stopped before the collision ; and this is not only unsupported by the evidence, but contrary thereto. Several questions of a similar character were asked, apparently for the purpose of entrapping the jury. It is true that a party has a right to reques’t answers to particular questions of fact pertinent to the issues, and which can be answered fairly upon the evidence-, as held in Bent v. Philbrick, 16 Kan. 190, and other cases, and the court has no discretion to refuse to submit such questions to the jury; but this court has often animadverted upon the abuse of this valuable right. (City of Wyandotte v. [439] White, 13 Kan. 191, 196 ; Mo. Pac. Rly. Co. v. Holley, 30 id. 465, 472; A. T. & S. F. Rld Co. v. Ayers, ante, p. 176, 42 Pac. Rep. 722, 723.) The cross-examination and badgering of a jury should not be tolerated, and the court should draw heavy black lines across all such questions. IV. Some legitimate criticisms are made upon the instructions. The court stated to the jury that it was the duty of all employees associated in the service of the railroad company, “first, to exercise care and diligence for the safety and life of other employees ; and, second, to exercise care and diligence for the protection of the property and interest of the employer.” The second clause should not have been given, for, while it may be correct as an abstract proposition, it is not applicable to this case. But we do not think that the jury could have been misled by it, and this remark is applicable to other parts of the instructions complained of. Upon the whole, there was no material error in the case, and the judgment must be affirmed. All the Justices concurring.