Barker v. Kansas City, Mexico & Orient Railway Co.

Citations

• 88 Kan. 767
• 129 P. 1151
• 1913 Kan. LEXIS 418

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Letter Press Copies of Waybills —Competent. The defendant, having shown the loss of certain waybills indicating the destination of two of the cars in question, offered in evidence letter press copies, which were refused. Held, error.</p> <p>2. Evidence—Chalk Marks on Car—Probative Effect Of. Evidence that upon one freight car of the train in question, at some time by someone unknown, there had been written with chalk the name of a certain station, and that destinations were sometimes thus indicated, is not sufficiently probative to warrant a finding that such car was then being moved to such station.</p> <p>S. Instructions—Assumption of Facts in Issue. Instructions should not by their language appear to assume as proven a matter sharply disputed by the parties.</p> <p>4. “Employees’ Liability Act”—To What Employees it Applies. Before an employee can recover for an injury under the federal employers’ liability act (35 U. S. Stat. at L. p. 65) it must appear that at the time of the injury the defendant railroad was engaged in the work of interstate commerce and that such employee was by the carrier employed in such commerce. To constitute him a person so employed his work at the time of the injury must have had a real and substantial connection with the interstate commerce in which such carrier was then engaged.</p> <p>5. Moving Caes—From One State to Another—Interstate Commerce. An interstate railroad when engaged in moving cars of water or coal over its line from one state into another for use in its own engines is engaged in interstate commerce.</p> <p>6. Master and Servant—Assumption of Risk—Valid Defense. Assumption of risk is a good defense to an action under this act, except when the violation by the carrier of some statute enacted for the safety of employees has contributed to the injury or death of the employee. And when such defense is pleaded and supported by the evidence it is the duty of the court to instruct