Atchison, Topeka & Santa Fe Railroad v. Napole

55 Kan. 401

• Court: Supreme Court of Kansas
• Decided: January 15, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

JohkstoN, J. :

The main contention of the railroad company is, that the special findings of fact do not justify the verdict of the jury'or the judgment of the court. We cannot confine our consideration, however, to the mere findings returned in answer to the special questions which were submitted to the jury at the instance of one of the parties. Although a great number of questions were submitted at the request of the railroad company, the answers or findings do not embrace all of the testimony, nor purport to completely cover the entire case, as was clone by the general verdict. To determine whether the genera] verdict is sufficiently supported, we must look to the testimony as well as the findings, and when they are considered ■ together they appear to be sufficient to establish a liability against the company, and to justify the result that was reached.

Napole was one of a crew of about 20 men who were employed in surfacing a track for the railroad company near Lansing, Kas., and they were in charge of William Fitzgerald, as foreman, or boss, as he was termed, and of Perry Davis, who acted as second boss and controlled and directed the men when Fitzgerald was not present. They traveled to and from their work on two hand-cars provided by the company, 3.0 of the men usually riding’ on each car. On the day of the casualty they went about 10 miles from their boarding-car to the place of work, and while retürning in the evening Napole and nine others were riding on the front car, accompanied by Fitzg«rald, the boss, while the second boss, Perry Davis, was riding on the second car with the other workmen. Napole stood with his back in the direction the car was moving, working the handle of the car up and down, when suddenly the metal lever to which the handle was fastened broke, throwing him in front of the car, where he was run over and received serious injuries, which resulted in his death a few days afterward. To account for the defect and the injury, it was shown that, on the day before, which was Sunday, several of the men went to Leavenworth for provisions, with the permission of the foreman, but Napole was not one of them, and when they reached that place the hand-car on which they rode was placed so near the main track of the railroad that an incoming train struck it, turned it over, and the lever of the car was found to be bent and injured by tlie collision. There is testimony that, within a brief time and before the car was taken from Leavenworth, the bend or defect in the lever was seen by Fitzgerald, Davis, and also by the assistant roadmaster, J. A. Justice. The injured car was placed on the track, taken a short distance, when Davis, one of the foremen, took the lever from the car and straightened it when it was cold with 'a heavy hammer. Testimony was offered tending to show that the bending and straightening of the lever while cold would have a tendency to break the fibers and materially weaken the iron, and that the resulting defect might not be apparent upon the surface by a casual observation. It does not appear that Napole was informed or had any knowledge of the injury to the lever, and it was shown that the defect was such that he could not have discovered it by reasonable observation. Prior.to the collision the hand-car was in good repair and suitable for the use for which it was intended, and upon the day of the injury it appears that a casual glance would not have revealed anything indicating that the lever was not sound or strong enough for the -use to which it was put. It is contended that the defect in the lever was a latent one, which could not be detected by an ordinary inspection, and that as the company had no knowledge of the defect and it was not discoverable by the exercise of ordinary care, it cannot be held liable. It cannot be said, however, in this case that the company was without knowledge of the impairment of the handcar. The evidence showed that the defect was immediately brought to the attention of both the foremen as well as of Justice, the assistant roadmaster, and Fitzgerald actually rode on the car himself after the lever had been bent and before it had been straightened. One of the witnesses states that when the defect was discovered by the assistant roadmaster, he told Perry Davis, the second foreman, that if he did n't fix it, lie would have it to pay for.

1- pioyce-Sy of employe. ~ foot-aim-pany, when liSennot-

3' negligent.’ It was the duty of the railroad company not only to furnish reasonably safe machinery and appliances for the operation of its road, but to use reaspnable care and diligence to maintain £jiem condition. Of course, if the defect is one which suddenly appears, the company will not be deemed to be neg-_ Rgen’t unless it has been remiss m testing the appliance, or knew or ought to have known of the defects which caused the injury. In Railroad Co. v. Jones, 30 Kas. 601, a case similar in many respects to the present one, it was said to be the undoubted duty of the company not only in the first instance to make reasonable efforts to supply machinery, tools and appliances safe and sufficient, but also to make like efforts to keep such machinery, tools and appliances in good condition, and to this end must make all reasonable and necessary inspections and examinations. In that case it was held that the foreman in charge of a gang ,of men who were engaged in surfacing a track represented the company, for whose knowledge or means of knowledge the company is responsible. Here, the company cannot escape responsibility, for several of those representing it had actual knowledge of the collision and that the lever was bent and out of repair. Although possessed of this knowledge, no pains were taken to ascertain the effect of the impairment, and instead of sending it to the shop to be repaired in an approved way so' as to make it reasonably safe for use, it was straightened while cold, and ill a manner likely to weaken and break the fiber of the iron. While it was apparently sound and fit for use after it had been straightened, the fact is that it was weakened and that it did break by reason of the impairment, and the injury of Napole was the result. While the defect was not easily discoverable after it had been straightened, and while Napole did not discover it, it had been discovered by those in charge of the men, and the company is bound by the notice of such defect.

There is some contention that the special findings are inconsistent with one another and with the general -verdict, and that some of them are not sustained by the testimony. There were 108 questions submitted to the jury, some of which -were involved and puzzling, but while there is some confusion in the answers we think a fair construction of all the questions and answers shows that the jury understood the issues in the case, and that their findings are reasonably consistent with one another and with the general verdict. In regard to the knowledge of the company, it is claimed that the jury found that the assistant roadmaster was the person upon whom notice should have been served in order to bring knowledge of the defect home to the company, whereas the notice was in fact brought to the foreman of the crew. The jury did find that the assistant roadmaster was the agent to whom reports were made in respect to defects in machinery or tools that became in bad order for use, but they also found that notice of the defect was brought home to Fitzgerald, the foreman, and that he was an agent of the company upon whom notice of the defect could be properly served in order to bind the company. They found that while there was no evidence as to what opinion Fitzgerald held as to the safety of the lever after it had been straightened, he saw the car and rode upon it after it was injured, and therefore had knowledge of its defective condition. This finding is explained by the testimony that Fitzgerald not only saw the car shortly after the lever was bent, but that he rode upon it for a short distance before the attempt was made to repair it. Aside from this, we have testimony that notice of the defect was brought to the attention of both the assistant roadmaster and the other foreman, and although all three knew of the defect, all were aware that it had not been sent to the shops to be restored to a reasonably safe condition by proper repairs. We think the testimony is sufficient to sustain the special findings of the jury and the general verdict which they returned.

It is next contended that the action cannot be maintained by the widow who is and was a resident of Missouri, because the injury occurred in August, 1888, before the passage of § 1 of chapter 131 of the Laws of 1889, authorizing the bringing of an action under § 422 of the code by the widow where no personal representative had been appointed. The later provision of the statute is supplemental to section 422, and is intended to make an existing cause of action available where the deceased was a non-resident of the state, or where, being a resident, no personal representative is or has been appointed. It has been held that the amendment does not create a new cause of action nor impose any limitation on an existing one.

*• pi^lfao&on resident. It simply changes the remedy, by providing that the cause of action given by § 422 shall not be lost on account of the non-resi-

dence of the deceased or the non-appointment of a personal representative. (Berry v. Railroad Co., 52 Kas. 769.) No error was committed by tlie court in overruling the demurrer «to the petition of the ■widow or in refusing to sustain the objection of the railroad company to all evidence offered'by her.

We find nothing substantial in the objections to the instructions nor in the claim that the conduct of counsel for defendant in error in the argument of the case to the jury was prejudicial.

The judgment of the district court will be affirmed.

All the Justices concurring.