Atchison, Topeka & Santa Fé Railroad v. Brassfield

51 Kan. 167

• Court: Supreme Court of Kansas
• Decided: January 15, 1893
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

Theodore A. Brassfield, who was employed by the Atchison, Topeka & Santa Fé Railroad Company in the capacity of a'section hand, was injured while unloading ties from a car, which were about to be used in the repair of the company’s track. The injury is alleged to have occurred through the negligence of a co-employé who was assisting in unloading the ties. It is stated that Brassfield had taken hold of one end of the tie, and the co-employé carelessly took hold of the other end and jerked and turned it over so as to throw Brassfield off his balance, causing a heavy strain on him, which produced inguinal and femoral hernia, and also varicocele. It is averred that the injury is of a permanent character, and was produced without fault, or negligence of Brassfield. He laid his damages at $5,000, and upon a trial the jury awarded him $700. The errors assigned relate to the admission and sufficiency of the evidence upon which the verdict rests, and also to the instructions, given to the jury.

The employment in which Brassfield was engaged was such as would entitle him to recover for any injuries sustained in consequence of the negligence or mismanagement of a co-employé. (U. P. Rly. Co. v. Harris, 33 Kas. 416.) It is claimed that the plaintiff below failed to show negligence or mismanagement on the part of the company or the co-employé, Hackley, who assisted him in handling the tie; but we think there is evidence upon this point which tends to support the verdict. The ties were water-soaked and weighed 300 pounds or more. There is testimony to the effect that Hackley first took hold of one end of the tie, and just as Brassfield took hold of the other end, and before he had straightened up and obtained a good hold, Hackley carelessly turned the tie and pulled it, so as to strike Brassfield’s body and cause the injury complained of. Although there was contradictory testimony, the jury specially found, upon the whole evidence, that the injury was the result of Hackley’s negligence, and, as their finding and verdict have been approved, the controversy, so far as the sufficiency of the evidence is concerned, is closed.

Objection is made to testimony given by Doctor Holmes, a physician and surgeon of extended practice in the treatment of ruptures or hernia, and who had made an examination of Brassfield’s case. He described the nature of the injury, and stated that such injuries may be produced without great violence or a great shock, but that he had never seen a rupture of that character except as the result of more or less violence. He was asked if he had heard Brassfield’s testimony stating how the injury was inflicted, and, after an affirmative reply, he was further asked to state whether, in his opinion, Brass-field’s condition could have been produced or brought about in the manner which he had detailed to the jury. Over the-objection of the company, he answered that it must have been done by violence. There is nothing substantial in this objection. The witness had shown himself to be fully qualified to testify as an expert in such cases, and to state what force or violence would produce such an injury as was suffered by Brass-field. It would have been more regular to have put the facts to him in a hypothetical form, and obtained his opinion upon them, instead of asking him for his opinion upon the facts testified to by Brassfield. The testimony of the latter on this question, however, was not obscure or involved, and, being very brief, the company can have suffered no prejudice from this irregularity.

Complaint is made of the instructions in the case; but the defendant in error insists that this question cannot be examined, as it does not affirmatively appear from the record that it contains all the instructions which were given. There is no statement in the record which in terms states that it contains all the instructions of the court, but there is a statement at the end of the case-made that “the above and foregoing is all the proceedings had in said cause.” The term “proceedings,” “ in its general sense in law parlance, means all the steps or measures adopted in the prosecution or defense of an action.” (Gordon v. The State, 4 Kas. 501; 19 Am. & Eng. Encyc. of Law, 220.) In a judicial sense, it fairly includes the instructions given to the jury, and hence it must be held that all of the instructions are contained in the record.

In one of the instructions, it is charged that “Direct and positive evidence of negligence as a fact is not required. Any circumstance from which negligence may be reasonably inferred may be sufficient.” It is contended that the instruction is misleading and erroneous, but we fail to see any serious objection against it. A charge of negligence, like any other fact, may be established by circumstances as well as by positive testimony. The jury were not permitted to infer negligence from any circumstance related in evidence, but were in effect limited to such circumstances only as justified a reasonable inference of negligence. The instruction might have been elaborated with profit, but no fuller statement of the law upon the subject was requested, and we cannot say that the court committed any error in giving the instruction quoted.

Some other objections are suggested against the charge of the court, but we find nothing substantial in them, nor do we see any reason why the verdict should be disturbed.

All the Justices concurring.