Gentry v. Davis ( 1924 )

The opinion of the court was delivered by

Hopkins, J.:

The plaintiff recovered damages for personal injuries and defendant appealed. The judgment was reversed. (See Gentry v. Davis, 114 Kan. 327.) A rehearing was granted and the case resubmitted.

In the former opinion it was said:

“On November 8, 1918, plaintiff was a fireman on one of defendant’s locomotives approaching the Condon station, Labette county, Kansas, from the south. At the station, headed southward, was another locomotive. It was night and the headlight of the locomotive standing at the station shone along the rails southward. When the engine, on which plaintiff was fireman, was distant two and a quarter miles from the station, the light of the other engine, or the exclamation of his engineer, frightened the plaintiff so that he jumped out of the gangway of his engine into the darkness and was injured. . . . The plaintiff recovered upon the theory that the engineer, on seeing the light ahead, negligently became excited, believing that a collision was imminent, and negligently warned plaintiff to jump; that the engineer was negligent in failing to be more cool and collected and failing to give the warning in a proper tone. The findings of the jury were to the effect that the engineer gave Ins exclamation with the intention of promoting the safety of the persons on Ms engine; that he did so in good faith when suddenly-confronted with a situation producing apprehension o,f danger, but that the engineer was negligent in not making proper observation. . . . The evidence disclosed that south-bound train, Extra 732, was, by its orders, and by the rules of the company, required to take its place on the main line track at Condon station and required to keep its headlight burning; that it was in every way complying with the orders and rules of the defendant company. The plaintiff knew these orders; was familiar with the rules governing the situation. He knew that the proper place for engine Extra 732 south bound, rvas on the main line at Con-don station and that his train, Extra 730, was required, by the orders, to take the siding, and knew that the light of engine Extra 732 would be burning as he approached the station and would shine along the track . . . It is clear that a recovery was had in tMs action based upon the warning given by the engineer. It is clear also that the engineer, believing a collision was imminent, acted in good faith in giving the warning. The question, therefore, does not involve the extent of danger, nor the actual appearance of danger, but is based squarely upon the action of the engineer, who in good faith, but excitedly, gave an erroneous warning wMch was acted upon by the plaintiff without any consideration.” (pp. 327, 329, 330.)

The plaintiff was an experienced fireman. At the time of the accident his engine was moving around a curve to the left, at a speed of 20 miles per hour. The rules of operation, with which he was familiar, required him, as well as the engineer, “to watch signals and switches carefully, as frequently the first view can be had from the fireman’s side.” He was required to assist the engineer in keeping a lookout on the track for signals and obstructions. He was required to be familiar with the rules that apply to the protection of trains and be prepared to promptly use the signals.

Negligence is the basis of liability. The plaintiff can recover only through the negligence on the part of the defendant or some of its employes. In the absence of negligence on their part, there can be no recovery. Negligence consists of the violation of a duty — a duty which arises, either by virtue of a statute, or by contract. We have no statutory provision defining the duties of an engineer and fireman towards each other. The statute makes a railway company liable in damages to its employes in consequence of any neglect of its agents or by any mismanagement of its engineers 'or other employees. (R. S. 66-235.) From this statute the plaintiff argues that the fireman’s duty-makes him an assistant to the engineer; that the nature of the engineer’s duty implies the exercise of authority over every one associated with him in the mechanical operation of the engine and train, and guarding against dangers incident to such mechanical operation. From this he contends that he was under the direction and authority of the engineer and that when the engineer exclaimed “jump” he obeyed the command and was injured; that the act of the engineer was the act of the defendant and that therefore the defendant is liable for his injury. A false premise ordinarily produces an incorrect result. The argument omits an essential premise of the syllogism, that, under the rules, with which he was familiar, plaintiff also was required to keep a lookout. He owed to himself, and to all persons, the duty to make observations ahead as they approached the station. His point of vision, if he looked, enabled him to see as well or better than the engineer. If he did not look he is chargeable with all he might have seen had he looked. His action and conduct are measured by what he saw,' or could have seen had he exercised the duties of observation imposed upon him. (Mo. Pac. Rl’y Co. v. Gedney, 44 Kan. 329, 24 Pac. 464; St. Louis &c. R. Co. v. Russell, 62 Ark. 182; D. & R. G. R’y Co. v. Henderson, 10 Col. 1, 4; Harris et al. v. Missouri K. & T. Ry. Co., 24 Okla. 341.)

The plaintiff contends that the engineer was his superior and that he jumped because the engineer commanded him to do so. The act of which plaintiff complains was not within the scope of the engineer’s authority. The engineer had authority to direct the fireman in the management of the engine — but only in so far as the performance of such directions did not endanger the fireman’s safety. The engineer had no authority to direct the fireman to jump off the engine when moving at a speed of twenty miles per hour. It was obviously dangerous to jump from the engine when moving at such a high rate of speed. Under the circumstances the plaintiff himself was the author of his misfortune. The chance of injury was so great that the plaintiff must be held to have jumped at his own risk. His injury was due to his own negligence. (Stephens v. Southern Railway, 82 S. C. 542; Vanordstrand v. Northern Pac. R. Co., 86 Wash. 665.)

The plaintiff cites Martin v. Railway Co., 93 Kan. 681, 145 Pac. 849. The reasoning of that case does not support his view. The plaintiff’s claim of the violation of a duty does not aid him when the facts themselves show no breach of duty within the scope of the engineer’s' authority. The defendant was responsible only so long as the engineer could be said to be performing an act within the course of his employment. When he got beyond the course of his employment to negligently do a wrong in ordering the plaintiff to abandon his engine, the defendant was not liable for his act. (See, also, Adams v. Hines, 114 Wash. 672; El Paso & Southwestern Co. v. La Londe, 108 Tex. 67.)

In Grand Rapids and Indiana Rld. Co. v. Ellison, 117 Ind. 234, it was said:

“It is a fact well known that all engines hauling passenger and freight trains carry a fireman as well as an engineer, and when the engine is in motion the post of the fireman is on the left side of the cab and that of the engineer on the right. If there was a fireman on the appellant’s engine op the morning of the accident, it was his duty when his train was in motion, and especially so when'nearing a railroad crossing, to be at his post and on the lookout.” (p. 239.)

In Stewart v. Nashville C. St. L. Ry., 183 Ala. 339, it was said:

“It may be conceded that plaintiff’s leap to escape from the flaming face of a mogul engine thus unexpectedly seen in the night might be no more nor less than what a reasonable man might have done, had he supposed it to be standing on the main fine. Nevertheless, we think his case must fail, because the defendant was not guilty of any breach of duty to him, and because he must be held to have assumed the responsibility of determining for himself what he would do for his awn safety, when he misjudged ordinary and usual conditions which were not at all dangerous in fact. Reduced to its last analysis, the complaint would impose upon defendant the duty of informing plaintiff, not of danger, but of the absence of danger — a rule of conduct not prescribed by any authority known to us, and which we think cannot be supported by either reason or the requirements of sound policy.” (p. 345.)

In the instant case there was no danger. There was no duty on the part of the engineer to warn the fireman either of danger or of the absence of danger. Plaintiff’s failure to look; his failure to do his duty in that regard, cannot protect him against the consequences of his negligence. He cannot shift to someone else the burden that rested upon himself. The rules under which he worked provided him with no excuse for not keeping a lookout. Had a stranger been injured because of the failure of either the engineer or fireman to keep a lookout, the defendant company would not be relieved of negligence because the engineer or the fireman asserted that he was engaged in some other duty. (Mo. Pac. Rl’y v. Gedney, supra.)

The case of Gt. Northern Ry. v. Wiles, 240 U. S. 444, was one to recover for the death of a brakeman on a freight train. A drawbar failed, the train breaking in two. The night was dark and misty; the place on a sharp curve. A passenger train was following the freight. It was the brakeman’s duty to go back and flag the passenger train. He failed in this duty. A collision resulted in which he was killed. The court rejected the claim that the defective coupling was the proximate cause. It held that the negligence of the deceased brakeman, in failing to comply with the rules of the company, was the causal negligence. The court said:

“The pulling out of the drawbar produced a condition which demanded instant performance of duty by Wiles, a duty not only to himself, but others. The rules of the company were devised for such conditions and provided for its emergency. Wiles knew them and he was prompted to the performance of the duty they enjoined (the circumstances would seem to have needed no prompting), by signals from the engineer when the train was stopped. He disregarded both. He brought death to himself and to the conductor of the train.” (See, also, U. P. Rl’y Co. v. Fray, 31 Kan. 739, 3 Pac. 550; Mounce v. Lumber Co., 91 S. W. 240 (Tex.); Novock v. M. C. R. R. Co., 63 Mich. 121; Smith v. Railway Co., 80 S. C. 1, 4.)

We adhere to the original decision that there was no negligence on the part of the defendant and no liability.