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

Citations

• 107 Kan. 274
• 191 P. 306
• 1920 Kan. LEXIS 59

Syllabus

<p>SYLLABUS BY THE COURT.'</p> <p>1. Federal Employer’s Liability Act — Negligence—Death of Brakeman — Killed While in Performance of Duty. The evidence fairly tends to show that the deceased brakeman was, when injured, engaged in the performance of his duty in attending to the air hose on the train then being made up by the switching crew.</p> <p>2. Same — Negligence Question for Jury. The record presents a case rightfully submitted to the jury as to the defendant’s negligence.</p> <p>3. Same — Certain Evidence Competent in Support of Negligence Charged. The charge of negligence in kicking certain cars violently and without warning against the deceased, is held to include the transmission of a wrong signal by a member of the switching crew, which signal was the cause of such violent movement.</p> <p>4. Same — Assumption of Risk by Employee. Under the federal employer’s liability act assumption of risk does not depend on a danger so glaring that a person of ordinary prudence would not have encountered it, but an employee is not held to have assumed the risk unless the danger is so obvious that an ordinarily prudent person would observe and appreciate it.</p> <p>5. Same — Deceased Brakeman Had Not Assumed the Bisk of Defendant’s Negligence. While it was a frequent thing to make up trains by kicking and shoving cars, the switching crew in this instance knew that some member of the train crew would be required to attend to coupling the air hose on the train being made up, and the deceased is not held to have assumed the risk of the sudden and violent propulsion of the cars against him without warning, under the circumstances shown by the record, and which the jury found was done in a negligent manner.</p> <p>6. Same — Instruction—Notice of Deceased’s Dangerous Position. It was not error to refuse an instruction exonerating the defendant if the switching crew had no notice and were ignorant that the deceased was in a position of danger.</p> <p>7. Same — Special Question