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

Citations

• 70 Kan. 814
• 79 P. 679
• 1905 Kan. LEXIS 58

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Railroads —Injury to Employee — Company Held Not Liable. In making up a freight-train in the night-time, the conductor, who-had business elsewhere, gave the switch list to the rear brakeman, who, in cooperation with the head brakeman, proceeded to-select certain cars in the yard and put them into the train. The rear brakeman took the lead in the switching operations, in selecting cars, and giving signals, and in this connection it was his duty to cut off cars and adjust switches, while it was the duty of the head brakeman to ride the cars when kicked or moved, and to set the brakes and stop the cars at the proper places.. A car was switched in upon a track, and the rear brakeman, who was near the switch when the car was kicked, said to the head brakeman, “Let her roll,” meaning that it was not necessary to ride or stop it. The head brakeman also thought it was unnecessary. It rolled passed the switch, but not far enough so that a man riding on the side of another car on the adjacent track could safely pass. When the second car was kicked down on the adjacent track, the rear brakeman ordered the head brakeman to ride it, and while doing so he collided with the first car, was knocked down, and injured. The rear brakeman was close enough to the misplaced car to see the danger, and the head brakeman was not, but if he had accompanied the car he could have seen that it was not “in the clear,” and observed the danger of passing it. In an action to recover for the injury, it is held, that the two employees were fellow brakemen, each with his own duties to perform; that the rear brakeman did not represent the company, nor stand in such relation as to make him the superior of the head brakeman; that, under the testimony of the-plaintiff, the injury was due to his own neglect of duty, and that the demurrer to his evidence was properly sustained.</p>