Pullin v. Missouri, Kansas & Texas Railway Co.

Citations

• 96 Kan. 165
• 150 P. 604
• 1915 Kan. LEXIS 339

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Death of Switchman under Cars — Certain Rules of Company Abrogated and Not in Force. In an action to recover for wrongful death the findings and evidence show that deceased was a switch-man and was killed by the movement of a string of cars under which he was working in the nighttime, assisting in chaining up a defective drawbar. The track upon which the cars stood was a half mile long and connected at either end with a lead track. It was used for storing bad-order cars, and it was customary for either the north or south crews to put cars on the track whenever occasion required. While the plaintiff, a member of the south crew, was at work under the car the north crew shoved a car in at the north end against the string, causing the cars to move a distance of eighteen feet. The jury found that it was usual and customary for the north crew to switch cars upon the track if occasion arose, unless warned not to do so by a flagman or signal, but that the written rules of the company requiring a blue flag by day and a blue light by night to be displayed at one or both ends of such train had been abrogated and were not in force at the time of the accident. Held, that there was evidence sufficient to support the finding, and that therefore the defendant could not rely as a defense upon the existence of the rules and the violation of them by the deceased.</p> <p>2. Same — Negligence Found by Jury Not Supported by Any Evidence— Specific Finding Inconsistent with General Verdict. The jury further found that the deceased placed no signals and took no precaution to protect the string of cars under which he was working from being struck or moved by cars from the north, and that the defendant’s negligence which caused the death of deceased consisted in the foreman of the north crew giving a hard back-up signal, causing the car to be pushed against the string with force and violence. Held, that the specific finding of the negligence of