Burks v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 83 Kan. 144
• 109 P. 1087
• 1910 Kan. LEXIS 485

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Injury to Employee — Contributory Negligence— Condition of Defendant’s Track — Special Findings. In an action for the death of a freight conductor, through being caught and crushed between two cars during switching operations, held:</p> <p>(a) Evidence that as a coupling was about to be made he was seen to try to raise a lever which operated the automatic device, and then to step “upon the track, and that after the accident the apparatus was found to be out of order, was sufficient to prevent the fact of his going between the cars from being deemed contributory negligence as a matter of law.</p> <p>(&) Evidence that close by his feet, near the middle of the track, there was found á lump of coal about the size of a man’s head, bearing indications of having been stepped on, and that a mark near it showed where some one’s foot had slipped, justified an inference that he had fallen over it and that his death was occasioned thereby.</p> <p>(c) Evidence that the lump of coal appeared to have been exposed to the weather for some time, that other smaller lumps had been permitted to lie upon the track indefinitely, and that weeds and grass were growing between the rails to the height of four to seven inches, warranted a finding of actionable negligence on the part of the company in respect to the condition of the track.</p> <p>(d) A finding that there was no evidence that the conductor was familiar with the condition of the track is to be interpreted as meaning that under all the evidence the jury were not satisfied that such was the case.</p>