Williams v. Atchison, Topeka & Santa Fé Railroad , 22 Kan. 117 ( 1879 )

The opinion of the court was delivered by

Valentine, J.:

Where a railroad company is sued by one of its employés for injuries received by him while in the-service of the company, and on the trial of the case no negligence is shown to have existed on the part of either the railroad company or any of its employés other than the plaintiff, we would think that the plaintiff could not recover, and that the court might rightfully and properly sustain a demurrer interposed by the defendant to the plaintiff’s evidence, and that the court might then rightfully and properly render judgment in favor of defendant and against the plaintiff for costs; and if we are right in this, the judgment of the court below must be affirmed. The facts of the case are substantially as follows:

On July 9, 1877, the plaintiff was employed by the defendant (the Atchison, Topeka & Santa Fé Railroad Company) as a common laborer in loading stones upon flat cars and in pushing these cars by hand upon a side-track of the defendant’s railroad. In the performance of this labor, it was necessary to pass over an embankment about fifteen or twenty feet high, and across a bridge twenty or twenty-five feet high, A recent rain had caused the ground to be slippery, and had washed out a small place in the side of the embankment next to the bridge, about three or four feet in width. The plaintiff, together with about fourteen or fifteen co-laborers, had pushed one ear over this place and upon the side-track in safety, and were taking the second one over when the plaintiff slipped and fell, and the car wheels of the hind truck passed over his left hand, severing part of the hand and three fingers, leaving only his thumb and fore-finger. The plaintiff slipped at the place where the embankment was washed out, and to save himself from falling placed his hand where the car wheels passed over it as aforesaid. The first car was taken over the embankment and across the bridge in the same manner that the second car was. The plaintiff testified on the trial concerning this, as follows: “I was hurt pushing over the second car; had helped to push another car over prior to getting hurt. I occupied substantially the same position in pushing the first car that I did on the second one. I saw both the bridge, track, embankment and stream, going over with the first car, and also saw them again on my return for the second car. It was in the daytime; the sun was shining.” Previously to this time such cars had been drawn by engines. There was no evidence tending to show that any employé of the railroad company,, other than the plaintiff, was negligent. The plaintiff’s action was brought to recover for said injury to his hand.

On the trial he proved the foregoing facts. The court then sustained a demurrer to the evidence, and rendered judgment against the plaintiff and in favor of the defendant for costs; and such judgment must be affirmed.

All the Justices concurring.